Constitutional Rights re: Access to Courts, Legal Literacy, Judicial Independence, Impartiality, Dignity and Competence

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

Background

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

Background

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

The trial of the applicant commenced.

Whilst it was underway, the applicant approached the High Court, under section 85(1) of the Constitution, once again seeking a permanent stay of the criminal proceedings against him on the basis that his rights and freedoms had been infringed as detailed above.

At the hearing of the matter before the High Court, the issue of the jurisdiction of that court to determine the matter during the pendency of the criminal trial before the Magistrates Court arose.

The High Court dismissed the contention that it did not have the requisite jurisdiction to determine the matter.

It nevertheless went on to dismiss the matter on the basis, that, the torture of the applicant was for no apparent reason in that it had not elicited any evidence or confession from the applicant. Being gratuitous, the torture of the applicant by the military was, at law, not a sound basis for permanently staying the criminal proceedings against him, the High Court went on to rule.

Dissatisfied with the dismissal of his application by the High Court, the applicant noted an appeal to the Supreme Court. It is not necessary that I set out the grounds of the appeal. This is so, because, in its decision, the Supreme Court neither determined nor adverted to these grounds.

It is however pertinent to record, that, the finding by the High Court, that it had jurisdiction in the matter, was not appealed or cross-appealed against.

Mero motu, the Supreme Court raised the issue.

It thereafter properly invited the parties to make additional submissions addressing the legal position governing the jurisdiction of the High Court in the matter.

It was the view of the Supreme Court, and correctly so, that, the provisions of section 175(4) of the Constitution were integral to the appeal that was before it, and, in particular, on the issue it had raised with the parties.

This is the provision that details the procedure to be adopted when a constitutional matter arises during any court proceedings.

The Supreme Court was keenly alive to the pending criminal proceedings before the Magistrate's Court, and during which proceedings the constitutional question of the legal redress of the applicant's unlawful arrest and torture had arisen.

Consequently, the Supreme Court found, that, by approaching the High Court during the pendency of the proceedings before the Magistrates Courts, the applicant had contradicted the precepts of certainty of process as articulated by this Court in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC).

I advert to this point in greater detail below.

In the final analysis, the Supreme Court held, that, the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) applied in full force to the facts before it. It also made the following four observations:

1. That, the Magistrates Court had vantage over the High Court in that it had heard evidence on the matter whereas the High Court was relying on an affidavit;

2. That, the Magistrates Court had jurisdiction in the matter;

3. That, the proceedings before the High Court had the potential to disrupt the proceedings in the Magistrates Court; and

4. That, the approach to the High Court was novel and was not supported by an elaborate procedure as the one set out in the rules of the Constitutional Court.

As a result, the decision by the High Court was found, rather euphemistically, to have been made on no sound jurisdictional basis and was accordingly set aside. In short, the Supreme Court held, that, the High Court had no jurisdiction in the matter.

The Intended Appeal

In the event that he is successful in the application for leave, the applicant intends to appeal against the decision of the Supreme Court on the following three grounds:

“1. The court a quo misdirected itself in not finding, that, the fact that the High Court is a 'superior court of record' under section 170 of the Constitution prohibited the Supreme Court from regarding the High Court as one of the 'inferior courts of justice' referred to in section 25 of the Supreme Court Act [Chapter 7.13].

2. The court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the magistrates court.

3. The court a quo erred and misdirected itself in not finding, that, once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

The broad issue that falls for determination in this application is whether it is in the interests of justice that the applicant be granted leave to appeal to this Court against the order of the Supreme Court.

The narrow and more specific issue is whether the decision of the Supreme Court was on a constitutional issue that was clearly articulated, and, additionally, whether the intended appeal enjoys prospects of success.

I define the issues narrowly in this fashion following the requirements of the law governing the determination of applications for leave to appeal to this Court....,.

The first ground of appeal raises the issue of the review jurisdiction of the Supreme Court over the proceedings and decisions of the High Court.

It is the appellant's contention, that, the High Court is a “superior court of record” under section 170 of the Constitution and that this in turn prohibits the Supreme Court from regarding it as one of the “inferior courts of justice” referred to in section 25 of the Supreme Court Act [Chapter 7.13].

As correctly noted by the applicant, section 170 of the Constitution provides that the High Court is a superior court of record.

The term “superior court of record” is however not defined in the Constitution.

Counsel for the applicant relied on the remarks by the Supreme Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) where the court held, that, the High Court was not an inferior court as contemplated by section 25 of the Supreme Court of Zimbabwe Act.

Whilst this decision has not been specifically overruled subsequently, it has been studiously and routinely ignored by the Supreme Court itself.

Quite apart from the fact that the Supreme Court is not bound by its own decisions, this is one decision that is well known in the jurisdiction for the fact that it has been ignored more times than it has been applied.

For the purposes of determining this application, it is not necessary that I debate and determine the stare decisis effect of Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) generally or seek to reconcile it with the numerous later decisions of the Supreme Court that have clearly gone against it.

This is so because it is my considered view, that, this application, and the intended appeal, turn and fall by the way side on the basis of the second issue raised by the applicant.

In the second ground of the intended appeal, the applicant contends that “the court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor…, to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the Magistrates Court.”

I cite in the contention the first ground of the intended appeal in full.

That the decision of the Supreme Court was squarely based on the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is not in dispute.

The ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), correctly understood, has a fairly broad and far-reaching impact on the right of persons to access a court in terms of section 85(1) of the Constitution for the enforcement of fundamental rights and freedoms in circumstances where section 175(4) of the Constitution can also, and should, consequently apply.

I understand the ratio decidendi of the case to lay down the legal proposition, unequivocally and without exception, that, any person who is appearing before any court and intending to raise and rely on any alleged violation of their fundamental rights or freedoms for any relief, must invoke the provisions of section 175(4) of the Constitution or forever lose their right to claim relief for such violations.

Put differently, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) holds, that, the right of any person to access a court, in terms of section 85(1) of the Constitution, if that person is already a party to proceedings before another court, is completely negated and the constitutional jurisdiction of all other courts is ousted.

I pause to note, that, this negation of the right to access other courts or the complete ouster of the jurisdiction of other courts, other than the court wherein the proceedings are underway, is not a mere rule of practice and procedure which, in the interests of justice, may be departed from.

It is an interpretation of the Constitution by this Court.

It therefore forms part of the body of the Constitutional Law of this jurisdiction on access to the courts to enforce a fundamental right or freedom.

In consequence of the above, the broad position of the law then becomes, that, where a person is already before a court in any proceedings, an approach to any other court, in terms of section 85(1) of the Constitution, for the enforcement of a fundamental right or freedom, outside the provisions of section 175(4) of the Constitution, is legally incompetent.

It begets a nullity for want of jurisdiction.

The other court so approached is stripped of its constitutional jurisdiction under section 85(1) by the availability of the procedure under section 175(4).

The above interpretation of the Constitution, by implication, rightly or wrongly, also supersedes and overrules the common law position that grants the High Court inherent jurisdiction over all persons and all matters.

It would appear that the legal position that I have outlined above, unduly restrictive on the right to access courts for the enforcement of fundamental rights and freedoms as it seems to be, is the position that obtained under the repealed Constitution.

It was the settled position under that Constitution, that, any constitutional issues arising in a lower court, during the course of any proceedings, had to be referred to this Court in terms of section 24(2) and could not be brought, pursuant to section 24(3), as a fresh cause of action under section 24(1): see Jesse v Attorney-General 1999 (1) ZLR 121 (S)…,.

Notwithstanding the adoption of the current Constitution, the position of the law remains unchanged.

Section 175(4) of the Constitution is the equivalent of section 24(2) of the repealed Constitution whilst section 85(1) is the current version of section 24(1), albeit improved.

That, the two provisions are located in different chapters of the Constitution detracts not from their effect and import as interpreted by this Court.

If I have correctly understood its ratio decidendi, then, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is authority for the simple proposition, that, where any person is before any court on any non-constitutional matter, but intends to seek redress for the alleged breach of his or her fundamental rights and/or freedoms arising in connection with that matter, he or she must raise the alleged breach before that court and invoke the provisions of section 175(4) of the Constitution if he or she intends to have the matter determined by this Court.

The party may also petition that court directly for any appropriate relief.

The net effect of this position is, that, any purported approach to another court, in terms of section 85(1) of the Constitution, under the circumstances, is not only impermissible but is a nullity as the constitutional jurisdiction of all other courts, the High Court included, is not only arrested but is lost by operation of law.

The import of the decision in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is thus not only to render section 175(4) of the Constitution as regulating access to the Constitutional Court on issues arising during proceedings before any court, as argued by counsel for the applicant, but to render section 85(1) of the Constitution redundant and of no force and effect where proceedings involving the applicant are pending before a court.

On the basis of the above, I must reject the argument by counsel for the applicant, that, section 85(1) of the Constitution creates unimpeded access to the High Court.

It does not always do so.

It only does so where there are no pending proceedings before any other court to which the applicant is a party.

In casu, the applicant was appearing before the Magistrates Court where he correctly raised the allegations of the breach of his fundamental rights. By the mere fact that he was appearing before the Magistrate's Court where he was obliged to raise such allegations, the constitutional jurisdiction of all other courts, under section 85(1) of the Constitution, the High Court, and this Court included, was thereby extinguished and lost.

This is the import of the ratio in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) which the Supreme Court correctly applied.

The ratio of Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), however, does not extinguish the right of the applicant to access this Court under section 85(1) of the Constitution, alleging that a lower court has wrongfully refused a request for a referral made under section 175(4) of the Constitution.

The cause of action in that matter will be the refusal by the lower court to refer the matter to this Court and not the alleged violation of the fundamental rights or freedoms giving rise to the referral.

It is therefore my finding, that, the applicant enjoys no prospects of success on the second ground of the intended appeal. It is most unlikely that this Court will reverse the order of the Supreme Court and find, instead, that, the High Court enjoyed jurisdiction, inherent or otherwise, in the matter.

By parity of reasoning, the third ground of the intended appeal falls by the wayside.

The assumption of jurisdiction by the High Court, in the circumstances of this matter, was erroneous and grievously so. It begot nothing that can be salvaged. Once it is accepted that the High Court did not have any jurisdiction in the matter that concludes the inquiry. Its proceedings fall away automatically by operation of law.

There is thus no possibility, in the circumstances of this matter, that, this court will find, as contended by the applicant, that “the court a quo erred and misdirected itself in not finding that once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

Disposition

The applicant has no prospect of success on its main contention that the High Court had jurisdiction in the matter that was placed before it. Accordingly, his application for leave to appeal cannot succeed.

Regarding costs, I see no justification for making an award of costs in this matter.

In the result, I make the following order:

The application is dismissed with no order as to costs.

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

On 3 February 2014, under Case No HB158/13, the High Court, sitting at Bulawayo, convicted the applicant of murder with actual intent to kill. After finding that there were no extenuating circumstances surrounding the commission of the offence, the court passed a sentence of death.

The background facts surrounding the applicant's conviction and sentence were the following:

The deceased and the applicant had a love relationship which had, at the time of the deceased's demise, lasted a number of years. As a measure of his love, the applicant set the deceased up in business, in the form of a shop in the rural area in which the deceased resided. The deceased was allegedly not happy with the treatment that the applicant was subjecting her to and terminated their relationship. She subsequently entered into a new relationship with another man.

The applicant was not happy with this development.

After unsuccessful attempts to resuscitate the relationship, he proceeded to her residence, accompanied by a friend and a police detail. Thereafter, the parties proceeded to the business premises where the applicant shot the deceased and the policeman after conducting enquiries on the status of the business venture. The deceased died at the scene leading to the arrest of the applicant, and, thereafter, his conviction.

An automatic appeal followed against the conviction and sentence by operation of law.

On 17 November 2014, in his appeal before the Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial and applied that the matter be referred to this Court in terms of section 175(4) of the Constitution of Zimbabwe (“the Constitution”). The relevant subsection reads:

“(4) Powers of courts in constitutional matters

If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request as merely frivolous or vexatious.”

The Supreme Court agreed that the request was neither frivolous nor vexatious and consequently made the following order:

“IT IS ORDERED THAT:

Two constitutional issues have arisen:

1. The appellant alleges that his right to a fair hearing, guaranteed by section 69(1) of the Constitution of Zimbabwe, was violated by the presiding Judge who descended into the arena.

2. The appellant was given a sentence which was not competent in terms of the law. In particular, he was sentenced at a time where Parliament had not enacted a law providing the circumstances in which a death sentence may be imposed in terms of section 48(2) of the Constitution of Zimbabwe.”

Before us, counsel for the applicant and the respondent are agreed, that, the application is properly before this Court.

I proceed now to consider each of the issues referred to this court for determination.

Whether the applicant's right to a fair hearing was violated

The object of a criminal trial is for the truth surrounding the commission of the offence to be established. The role of the judge is therefore an onerous one as his task is to see that justice is not only done, but that it is seen to be done.

In this exercise, he should conduct himself in such a manner that he is not viewed or perceived to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the witnesses or the accused person, but, such questioning must not be framed in such a manner as to convey an impression that he is conducting a case on behalf of one of the parties. The judge must avoid questions that are clearly biased and show a pre-disposition on the part of the judge. The judge should neither lead nor cross-examine a witness.

The complaint by the applicant is that the trial court descended into the arena of conflict between himself and the State thereby violating his right to a fair trial as guaranteed by section 69(1) of the Constitution. The applicant further contends, that, the record of proceedings shows that the court was not impartial. It is argued further, that, the questioning of the applicant by the trial judge was such that, because of its frequency; length; timing; form; tone; content, it was apparent that the trial judge was hostile to the applicant.

The limits to which a judicial officer may question a witness or an accused person in a criminal trial were aptly set out by TROLLIP AJA in S v Rall 1982 (1) SA 828…, in the following terms:

“While it is difficult and undesirable to attempt to define precisely the limits within which such judicial questioning should be confined, it is possible, I think, to indicate some broad, well-known limitations, relevant here, that should generally be observed: see eg. S v Sigwala 1967 (4) SA 566 (A) at 568F-H.

1. According to the above quoted dictum of CURLEWIS JA, the judge must ensure that 'justice is done'. It is equally important, I think, that he should ensure that justice is seen to be done. After all, that is a fundamental principle of our law and public policy.

He should therefore so conduct the trial that his open-mindedness, his impartiality, and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused: see, for example, S v Wood 1964 (3) SA 103 (O) at 105G; Rondalia Versekeringskorporasie Van SA Bpk v Lira 1971 (2) SA 586 (A) at 589G; Solomon and Anor NNO v De Waal 1972 (1) SA 575 (A) at 580H.

The judge should consequently refrain from questioning any witness or the accused in such a way, that, because of its frequency, length, timing, form, tone, contents or otherwise conveys or is likely to convey the opposite impression: cf Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A) at 570E-F; Jones v National Coal Board (1957) 2 All ER 155 (CA) at 159F.

2. A judge should also refrain from indulging in questioning witnesses or the accused in such a way or to such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating upon the issues being fought out before him by the litigants. As LORD GREENE MR observed in Yull v Yull (1945) 1 All ER 183 (CA) at 189B, if he does indulge in such questioning -

'He, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.'

See, too, the Jones case (supra) at 159C-E: or, as expressed by WESSELS JA in Hamman v Moolman 1968 (4) SA 340 (A) at 344E, the Judge may thereby deny himself -

'The full advantage usually enjoyed by the trial judge, who, as the person holding the scale between the contending parties, is able to determine objectively and dispassionately, from his position of relative detachment, the way the balance tilts.'

The quality of his views on the issues in the case, including those relating to the demeanour or credibility of the witnesses or the accused or the relative probabilities, may, in consequence, be seriously impaired: see eg R v Roopsingh 1956 (4) SA 509 (A) at 514-5: and, if he is sitting with Assessors, that may well adversely influence their deliberations and opinions on those issues.

3. A judge should also refrain from questioning a witness or the accused in such a way that may intimidate or disconcert him or unduly influence the quality or nature of his replies and thus affect his demeanour or impair his credibility. As LORD GREENE MR further observed in Yull's case supra at 189B-C:

'It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.'”

In this case, it was contended, on behalf of the applicant, that, the manner in which the learned judge in the trial conducted himself revealed hostility to the applicant.

In S v Mangezi (1) ZLR 272 (S), DUMBUTSHENA CJ commented as follows:

“It is not only when a judicial officer shows his bias that his leading or cross-examination of a witness may be condemned, it is also the fact of taking over the examination of the prosecution or defence witness that is not permissible.”

Further to the above, the applicant has contended that the intensity of questioning by the judge, whilst he was under cross-examination, was more extensive than that of the prosecutor. Whilst the prosecutor put a total of 144 questions to the applicant during his cross-examination, the questions from the judge, during the same cross examination, was a record 122. When the applicant's counsel sought to re-examine the applicant, the learned trial judge put to the applicant an additional 24 questions bringing the total number to 146.

However, it is not just the number of questions or their longevity that the applicant contests, it is also the content of the questions and the form that they took that is being complained of. Counsel for the applicant drew the attention of the court to the impugned exchanges between the court and the applicant. To illustrate the gravity of the complaint, I set out a few examples of the same.

The learned judge, after an answer to a question by the applicant, was heard to interject:

“No, no, no…, this does not make sense. What was happening to the money, you were making profits and that is why you were running the business, so what was happening to the money?”

Further on in the record, the learned judge, during the cross-examination of the applicant, also commented to an answer by the applicant in the following terms:

“And when she tells you that she was married and you did not believe her and you go there to find out if she is married, and you find the deceased coming out of the husband's house you say that is provocation? You wanted to go and find out whether she was married and you found out she was married and you still say it was provocation?”

As submitted by counsel for the applicant, the inescapable conclusion that emerges from the record is that the judge descended into the arena, and, as a consequence, he deprived himself of the detached impartiality required of a judicial officer. The fairness of the trial was clearly undermined. He had pre-judged the issues of the trial that was before him.

The remarks of HOLMES JA in S v Sigwala 1976 (4) SA 566 (AD) are apposite. At p568F-H, the learned jurist stated:

“The principle is clear. A judicial officer should ever bear in mind that he is holding a balance between the parties, and that fairness to both sides should be his guiding star, and that his impartiality must be seen to exist. There are occasions, particularly where a party is unrepresented, when the judicial officer will properly take some part in the examination of witnesses, but, in the main, and as far as is reasonably possible, he will usually tend to leave the dispute to the contestants, interrupting only when it is necessary to clarify some point in the interests of justice. Thereby, he is better able to form objective appraisals of the witnesses who appear before him, and he also avoids creating wrong impression in the minds of those present.”

Section 69(1) of the Constitution reads:

“Right to a Fair Hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

One of the fundamental principles of criminal law is that a person charged with a criminal offence is presumed to be innocent until the prosecution proves that he committed the offence with which he is charged. Thus, the State has an onus to establish every element of the offence.

The rules of natural justice require that whoever takes a decision should be impartial, having no personal interest in the outcome of the case and that a decision should not be taken until the person affected by it has had an opportunity to state his case.

A judicial officer has an obligation to ensure that a trial is conducted in a manner that is fair to all parties before him. To that end, the judicial officer is required to leave the dispute to the parties before him as far as is reasonably possible, and should interrupt only when it is necessary to clarify some point in the interests of justice.

In view of the stance assumed by the learned trial judge, the defence proffered on behalf of the applicant was not properly evaluated thus further undermining the trial.

His right to a fair hearing, as guaranteed under section 69(1) of the Constitution, was clearly violated.

In my view, the finding that the trial was not fair determines the application, and it becomes unnecessary to resolve the question relating to the constitutional validity of the sentence of death imposed upon the applicant.

One of the two issues referred to this court by the Supreme Court has been decided in favour of the applicant.

Both counsel are agreed, that, it would be in the interests of justice if the proceedings in the High Court were to be set aside as being inconsistent with section 69(1) the Constitution. Under such circumstances no benefit would ensue from a determination on the question of the constitutional validity of the sentence when the trial proceedings have been set aside.

It is further agreed between counsel that it would be in the interests of justice if the matter were to be remitted for trial de novo before a different judge.

Accordingly, it is declared that:

The applicant's right to a fair hearing, in accordance with section 69(1) of the Constitution, has been violated by the proceedings in Case No. HCB158/13.

Accordingly, the following order will issue:

IT IS ORDERED THAT:

1. The proceedings conducted under Case No. HCB158/13 be and are hereby set aside.

2. The matter be and is hereby remitted to the High Court in Bulawayo for trial de novo before a different judicial officer.

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...

Introduction

This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.

Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.

Both applications are opposed by some of the respondents.

Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.

In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.

The judges were cited in official capacities.

The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.

In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.

Background

On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.

That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.

Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:

“IT IS DECLARED THAT:

1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.

2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.

IT IS CONSEQUENTLY ORDERED THAT:

3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.

4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.

5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.

6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.

7.There shall be no order as to costs."

During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly.

We point out, that, notwithstanding the statement suggesting that what is being sought in paragraphs 3-7 of the draft order is consequential relief, the relief is clearly in the form of a declaration.

The second to eighteenth respondents did not file opposing papers.

They will therefore be taken not to have opposed the application: see Prosser & 35 Others v Ziscosteel Company Ltd HH201-93 and Panganai and 20 Others v Kadir & Sons (Pvt) Ltd HH26-95.

We do not accept the submission by their counsel that they oppose the application without filing opposing papers. This is because the directions issued on 12 May 2021 required the respondents to file opposing papers if they were opposing the application. Their grounds of opposition would have to be contained in the opposing affidavits.

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

8. There shall be no order as to costs."

The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.

The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.

Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC).

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with....,.

The Dispute on the Merits

This dispute stands to be resolved on the effect of section 186 of the Constitution of Zimbabwe as introduced by the Constitution of Zimbabwe Amendment (No.2) Act 2021 in light of the provisions of section 328 of the Constitution 2013.

The new section 186 of the Constitution provides -

“186 Tenure of Office of Judges

(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional 5 years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than 15 years, but —

(a) They must retire earlier if they reach the age of 70 years, unless, before they attain that age, they elect to continue in office for an additional 5 years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the judge so to continue in office;

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional 5 years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the judge so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court and judges of the Supreme Court.

(5) Judges of the High Court, and any other judges, hold office from the date of their assumption of office until they reach the age of 70 years, when they must retire.

(6) A person may be appointed as a judge of the Supreme Court, the High Court, or any other court, for a fixed term, but, if a person is so appointed, other than in an acting capacity, he or she ceases to be a judge on reaching the age of 75 years (in the case of a judge of the Supreme Court) or 70 years (in the case of a judge of the High Court or any other court) even if the term of his or her appointment has not expired.

(7) Even though a judge has resigned or reached the age of retirement, or, in the case of a judge of the Constitutional Court, reached the end of his or her term of office, he or she may continue to sit as a judge for the purpose of dealing with any proceedings commenced before him or her while he or she was a judge.

(8) A judge may resign from his or her office at any time by written notice to the President given through the Judicial Service Commission.

(9) The office of a judge must not be abolished during his or her tenure of office.”

Its effect is to extend the retirement age of the Chief Justice, Deputy Chief Justice, and judges of the Constitutional and Supreme Court as will be dealt with in due course.

Section 328 of the Constitution 2013 reads as follows:

“(1) In this section —

'Constitutional Bill' means a Bill that seeks to amend this Constitution;

'Term-limit provision' means a provision of this Constitution which limits the length of time that a person may hold or occupy a public office.

(2) An Act of Parliament that amends this Constitution must do so in express terms.

(3) A Constitutional Bill may not be presented in the Senate or the National Assembly in terms of section 131 unless the Speaker has given at least 90 days notice in the Gazette of the precise terms of the Bill.

(4) Immediately after the Speaker has given notice of a Constitutional Bill, in terms of subsection (3), Parliament must invite members of the public to express their views on the proposed Bill in public meetings, and through written submissions, and must convene meetings and provide facilities to enable the public to do so.

(5) A Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two thirds of the membership of each House.

(6) Where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16 —

(a) Within 3 months after it has been passed by the National Assembly and the Senate in accordance with subsection (5), it must be submitted to a national referendum; and

(b) If it is approved by a majority of the voters voting at the referendum, the Speaker of the National Assembly must cause it to be submitted without delay to the President, who must assent to and sign it forthwith.

(7) Notwithstanding any other provision of this section, an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.

(8) Subsections (6) and (7) must not both be amended in the same Constitutional Bill nor may amendments to both those subsections be put to the people in the same referendum.

(9) This section may be amended only by following the procedures set out in subsections (3), (4), (5) and (6) as if this section were contained in Chapter 4.

(10) When a Constitutional Bill is presented to the President for assent and signature, it must be accompanied by —

(a) A certificate from the Speaker, that, at its final vote in the National Assembly, the Bill received the affirmative votes of at least two-thirds of the membership of the Assembly; and

(b) A certificate from the President of the Senate, that, at its final vote in the Senate, the Bill received the affirmative votes of at least two thirds of the membership of the Senate.”

We draw particular attention to the provisions of section 328(7) of the Constitution because this matter revolves around its relationship with section 186 of the Constitution, and the effect of that relationship on the tenure of office of the Honourable Justice Luke Malaba and the other judges who are cited as respondents in Case No. HC2128/21.

The Applicants and Respondents Contentions

The applicants case is summarized in paragraphs 61-65 of the founding affidavit in HC2128/21 and paragraphs 17-21 of the founding affidavit in HC2166/21.

It is that the second respondent and the other persons cited who occupy the offices of judges of the Constitutional Court and Supreme Court cannot remain in office beyond the age of 70 years notwithstanding the provisions of section 186 of the Constitution as substituted by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

The essence of the respondents case is that section 186 of the Constitution did not affect the term-limit or tenure of the judges of the Constitutional and Supreme Courts, and is therefore not affected by the provisions of section 328(7) of the Constitution.

ln other words, what has to be decided in casu is whether the 2nd to 18th respondents retire upon reaching the age of 70 years or are entitled to elect to continue in office for an additional five years until they reach the age of 75 years.

This issue can only be resolved by interpretation of sections 186 and 328(7) of the Constitution.

It is important to give an overview of the principles of interpretation which apply to constitutional provisions in general insofar as these have a bearing on how these two sections should be understood.

The Approach to Constitutional Interpretation

According to IAIN CURRIE & JOHAN de WAAL 'The Bill of Rights Handbook' 6th ed…., "Constitutional interpretation is the process of determining the meaning of a constitutional provision."

Thus, interpreting a Constitution entails giving "meaning" which we understand in its wide sense, to the provisions of a Constitution. An interpretation that does not give effect to the purpose of the provision does not give meaning to it; see Judicial Service Commission v Zibani & Others SC68-17; 2017 (2) ZLR 114.

The textual provisions of the Constitution under consideration are the starting point, but, they should not be considered and interpreted piecemeal or in isolation.

We therefore do not agree with the submission by counsel for the first respondent, that, the cases of Natal Joint Municipal Pension Fund v Enduhreni Municipality 2012 (4) SA 593 and Zambezi Gas (Pvt) Ltd v NR Barber (Pvt) Ltd & Anor SC03-20 introduce a new and different paradigm to the interpretation of Constitutional provisions.

The textual provisions must be construed contextually having regard to the Constitution as a whole; see Matatiele Municipality v President of the Republic of South Africa 2007 (6) SA 477.

The preferred approach is the 'generous' and 'purposive' interpretation that gives expression to the underlying values of the Constitution, as was held in S v Makwanyane 1995 (3) SA 391.

Section 46(1) of the Constitution 2013 provides as follows:

“(1) When interpreting this Chapter (read 'Constitution'), a court, tribunal, forum, or body —

(a) Must give full effect to the rights and freedoms enshrined in this Chapter;

(b) Must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and, in particular, the values and principles set out in section three;

(c) Must take into account international law and all treaties and conventions to which Zimbabwe is a party;

(d) Must pay due regard to all the provisions of this Constitution, in particular, the principles and objectives set out in Chapter 2; and

(e) May consider relevant foreign law;”

The starting point is to appreciate, that, in Zimbabwe, the Constitution is the supreme law. This fundamental tenet of democracy is enshrined as a rule and as one of the values and principles upon which the nation of Zimbabwe is founded.

Section 2 of the Constitution 2013 provides as follows:

“2. Supremacy of Constitution

(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom, or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of Government at every level, and must be fulfilled by them.”

Section 3 of the Constitution 2013 states the following, among other things:

“3. Founding Values and Principles

(1) Zimbabwe is founded on respect for the following values and principles —

(a) Supremacy of the Constitution;

(b) The rule of law;

(c) Fundamental human rights and freedoms;

(d)…,.;

(e)…,.;

(f)….,.;

(g)…,.;

(h) Good governance;

(i)…,.;

(2) The principles of good governance, which bind the State and all institutions and agencies of government at every level, include -

(a)…,.;

(b)…,.;

(c)…,.;

(d)…,.;

(e) Observance of the principle of separation of powers;

(f) Respect for the people of Zimbabwe, from whom the authority to govern is derived;

(g) Transparency, justice, accountability and responsiveness;

(h)…,.;”

See also section 331 of the Constitution 2013, which provides as follows:

“Section 46 applies, with any necessary changes, to the interpretation of this Constitution apart from Chapter 4.”

The essence of the constitutional supremacy doctrine, as distinct from parliamentary sovereignty, is that the Constitution is the litmus test, the ultimate measure, by which the validity of any law, practice, custom or conduct is assessed.

This aspect distinguishes constitutional supremacy from parliamentary supremacy or parliamentary sovereignty. Where the latter system obtains, Parliament is supreme, and, any law that it passes cannot have its content questioned for validity.

Zimbabwe is a constitutional democracy in which the Constitution is supreme, and not a parliamentary democracy in which Parliament is supreme; see Judicial Service Commission v Zibani & Others SC68-17; 2017 (2) ZLR 114.

The principle of separation of powers, which is explicitly provided for in section 3 of the Constitution, and guaranteed by the architecture of our Constitution, has in it, that, among the three arms of the State, the judiciary has the primary duty to interpret the law; see In Re: Prosecutor-General of Zimbabwe on his Constitutional lndependence and Protection from Direction and Control CC13- 17; 17 (1) ZLR 107.

Therefore, the exercise of determining what section 186 of the Constitution means in light of the provisions of section 328(7) of the Constitution falls squarely within the mandate of the courts.

The principles which are encapsulated in the principle of good governance demand a new and different way of doing things from what may have been done in the past, hence the special mention of transparency, justice, accountability and responsiveness.

This is the context in which the entrenchment of section 328(7) of the Constitution must be understood.

The provision's purpose is, among the other important considerations, to ensure, that, a person who holds or occupies public office does so for a limited time, to prevent turning persons into institutions thereby compromising on the precepts enjoined in section 3 of the Constitution.

It is also to ensure that a person who occupies or holds public office does not influence changes in the law in order to entrench his or her occupation of the public office by extending the length of time that he or she remains in that office.

With particular reference to judicial officers, entrenchment of provisions relating to terms of office for incumbents ensures confidence in the judiciary by dispelling any suspicion that favours are being extended to them, contrary to the provisions of the Constitution, that would undermine the independence of the judiciary.

As was held in the case of Justice Alliance of South Africa v President of the Republic of South Africa & Others: Freedom Under Law v President of the Republic of South Africa and Others; Centre for Applied Legal Studies and Another v President of the Republic of South Africa and Others 2011 (5) SA 388:

"ln approaching this question, it must be borne in mind, that, the extension of a term of office, particularly one conferred by the Executive or Parliament, may be seen as a benefit. The judge or judges upon whom the benefit is conferred may be seen as favoured by it….,. The power of extension, in section 176(1), must, therefore, on general principle, be construed so far as is possible to minimize the risk that its conferral could be seen as impairing the precious won institutional attribute of impartiality and the public confidence that goes with it."

Public confidence in the independence of the judiciary would be severely undermined if there was a belief, or even suspicion, that the judiciary, or members thereof, are, like nocturnal spooks acting under cover of darkness, knocking on the doors of the Executive and Legislative arms of Government begging or lobbying for extension of their terms of office.

This is the reason why there is need for certainty regarding the tenure of office of judicial officers in order to dispel any thinking that if they behave in a certain way they might get the benefit of favourable constitutional amendments.

In order to guard against subtraction from the founding values and principles, including the independence of the judiciary, the court must embrace substantive reasoning, an interpretive model which gives substance to those values and principles, and eschew legal sophistry which would result in narrowing down the meaning of these values.

Further, the entrenchment ensures, that, if there is any change in the Constitution, the effect of which is to extend the length of time that a person may hold or occupy public office, such a change in the in law must be subjected to the rigorous processes in section 328 of the Constitution - which include a referendum.

We point out, that, section 328 of the Constitution does not stop the legislature from amending the Constitution by extending term limits in general.

If the changes in the Constitution do not have the effect of extending the length of time that the incumbent may hold office, they do not have to go through the rigorous processes required by section 328 of the Constitution. However, if the effect of such amendments is to extend the length of time that a person holds or occupies public office, then, they must be subjected to those entrenched processes.

Section 328 of the Constitution has not been repealed by the Constitutional Amendment. It must therefore be given effect.

Interpretation of Section 186 and 328(7) of the Constitution

It is an established principle that sections of the Constitution must not be read in isolation but must be read together, and in the context of the whole text, in order to give effect to the purpose and objective of the Constitution: see Tsvangirai M v Mugabe R, Z.E.C. & 2 ORS CC20-17; (2) ZLR 1 (CC) per MALABA DCJ…,.

In this case, the two sections are not in conflict, but, must be read together and with the Constitution as a whole.

Section 328 of the Constitution, which deals with amendment of the Constitution, entrenches certain provisions. This entrenchment is by requiring, in addition to the usual procedure for passing an amendment to the Constitution, that, such amendments be submitted to a referendum and get approval from a majority of the voters voting at the referendum.

One such provision which is entrenched is section 328(7) of the Constitution, which, as recited above, provides that:

“(7) Notwithstanding any other provision of this section, an amendment to a term limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The Constitution of Zimbabwe Amendment (No.2) Act 2021 amends section 186 of the Constitution through its section 13.

Section 332 of the Constitution 2013 defines the term 'amend' to include "vary, alter, modify, add to, delete or adapt."

In this instance, the existing section 186 of the Constitution was repealed and substituted with a new section 186.

This is an amendment.

In order to determine whether or not the amendment is one that falls within the ambit of section 328(7) of the Constitution, two requirements must be satisfied, namely –

(a) It must be an amendment to a term-limit; and

(b) It must have the effect of extending the length of time that a person may hold or occupy a public office.

'Effect' simply means result, consequence, or impact - irrespective of the expressed purpose of the amendment.

Once it satisfies these two requirements, then, such an amendment is excluded from applying to "any person who held or occupied that office, or an equivalent office, at any time before the amendment."

The reference to an 'equivalent office' is no doubt meant to deal with a situation where an amendment might seek to rename or reconfigure what is essentially the same office in order to escape the consequences of section 328(7) of the Constitution, thereby extending a person's stay in office.

There can be no question that judges occupy public office.

There was debate as to whether section 186 of the Constitution is a term limit provision which has the effect of extending the length of time that the second respondent, and the other judges of the Constitutional Court and Supreme Court, may hold or occupy office.

The respondents contended that it was not a term-limit provision.

The submission was that the only term limit which is contained in section 186 of the Constitution is one that is contained in subsection (2), which states that:

"Judges of the Constitutional Court are appointed for a non-renewable term of no more than fifteen years."

Their argument was that the retirement age stipulated does not limit the term of office of the judges. This argument means that judges of the Supreme Court and High Court have no term limit.

That argument is not sustainable.

Section 328(1) of the Constitution 2013 defines 'term-limit provision' to mean "a provision of this Constitution which limits the length of time that a person may hold or occupy a public office."

We therefore come to the conclusion, that, section 186 of the Constitution is a term limit provision and that it has the effect of extending the length of time that a person may hold the office of judge of the Constitutional Court and Supreme Court.

It increases the retirement age of the judges of these courts from the original 70 to 75 years.

The fact that this extension of the tenure of office is subject to election by the concerned judge, and acceptance by the President, after consultation with the Judicial Service Commission, and production of a medical report, does not change its nature as an extension of a term limit.

In respect of the judge of the Constitutional Court, the term limit is based on two dimensions, namely;

(i) The period of 15 years which is provided in section 186 of the Constitution; and

(ii) The age of the affected judge.

It is clear that whichever of these two (2) occurs first terminates the tenure of the judge. This is what is generally referred to as a hybrid tenure arrangement.

There are thus three types of valid tenure arrangements in use, generally, the world over:

(i) Life limits (when one dies);

(ii) Age limits (when one reaches a specified retirement age); and

(iii) Fixed term Iimits (when a specified period of service is reached).

These three tenure arrangements are contained in section 186 of the Constitution of Zimbabwe. Tenure has to do with term of office; term of office has to do with time. Both fixed term (fixed time), and age-based term (age-based time), have to do with time. Time is the underlying factor in both of them.

Therefore, the inescapable conclusion is that varying retirement age is varying term limits.

ln respect of Supreme Court judges, the tenure of office is defined by age only. Thus, for instance, a Constitutional Court judge who is aged 70 years at the time of his or her appointment has his or her term limited to only five years. That term limit is defined by his or her age. He or she must retire upon turning seventy-five years after serving for only five years. On the other hand, a judge of the same court who is fifty years old at the time of his or her appointment has his or her term defined by the period of fifteen years. The judge retires from the Constitutional Court at the age of sixty-five years.

On the other hand, a judge of the Supreme Court, under the new amendment, retires at the age of seventy-five years irrespective of how many years he has served on that Bench.

That section 186 of the Constitution is a term limit provision, and that it is concerned with extending the length of time that judges of the Constitutional Court and the Supreme Court hold or occupy public office, is also evident from the provisions of section 186(4) of the Constitution. This provision explicitly refers to section 328(7) of the Constitution. This reference to section 328(7) would be rendered superfluous or nugatory if, as suggested by the respondents, it is found that section 186 is not a term-limit provision.

The respondents have not suggested why the legislature would engage in a superfluous exercise, especially in light of the presumption against superfluity in the interpretation of statutes.

Also, in the affidavits filed in this court, the respondents referred to its effect as extending the term of office.

See paragraphs 25.4(b) and (c) of the 19th respondent's opposing affidavit in HC2128/21.

The submission made on behalf of the respondents reads the reference to the fifteen years in isolation from the rest of subsection (2) of section 186 of the Constitution.

That is the approach to interpretation which must be discarded.

The case Justice Alliance of South Africa v President of the Republic of South Africa & Others: Freedom Under Law v President of the Republic of South Africa and Others; Centre for Applied Legal Studies and Another v President of the Republic of South Africa and Others 2011 (5) SA 388 which has been referred to by both the applicants and respondents also confirms that age can, and does, indeed define and can be used to extend a term of office, as has happened following the enactment of section 186 of the Constitution:

"lt follows, that, in exercising the power to extend the term of office of a Constitutional Court Judge, Parliament may not single out the Chief Justice…,. Age is an indifferent criterion that may be applied in extending the term of office of a Constitutional Court Judge.”…,.

Section 186(4) and section 328(7) of the Constitution can be read together.

In our conclusion, section 186(4) of the Constitution does not apply to the person of the second respondent and the other persons who were judges of the Constitutional Court prior to the amendment. It also does not apply to the persons who were judges of the Supreme Court. This is because these are persons who fall within the ambit of section 328(7) of the Constitution in that they held or occupied the public office prior to and at the time of the amendment of the Constitution.

Consistent with the hallowed principle of interpretation which avoids an interpretation which results in a conflict in constitutional provisions, we come to the conclusion, that, section 186(4) of the Constitution does not apply to the judges of the Constitutional Court and Supreme Court who held office before the amendment.

There is no confusion which results from the wording of section 186(4) of the Constitution.

It says that the section shall apply to the continuation in office of the Chief Justice, Deputy Chief Justice, judges of the Constitutional Court and judges of the Supreme Court. This means it would apply to the continuation of the mentioned public officer other than those who were judges before the amendment.

The provision mentions offices rather than the persons occupying them; section 186(4) of the Constitution must therefore be understood as applicable to persons who are appointed to the named offices subsequent to the amendment. It does not mention 'persons' and does not state that the persons who were in office prior to the amendment would benefit from it.

If it did so, this would put it in conflict with the express provisions of section 328(4) of the Constitution and its constitutionality would be in question given that it was not submitted to a national referendum.

On the other hand, an interpretation that excuses the persons who held public office as judges of the Constitutional and Supreme Courts, prior to the amendment, from the ambit of section 328(7) of the Constitution, would reduce the Constitution to a wooden iron, because any person who already holds or occupies public office can easily cause their term of office to be lengthened by enactment of a provision similar to section 186(4) of the Constitution thereby perpetuating the mischief which was meant to be addressed by the entrenchment of section 328 of the Constitution.

The Status of Honourable Justice Malaba

It is common cause that the Honourable Justice Malaba is the only judge of the Constitutional Court who has turned 70. At the time that the applications were filed, he had not turned 70. He turned 70 years old on 15 May 2021.

The applications were filed following indications that he might or would benefit from the new section 186 of the Constitution by having his tenure of office extended by another 5 years.

The respondents, in their opposing affidavits, have referred to a letter dated 11th May 2021, by which his tenure was to be extended with effect from 16 May 2021.

In view of the conclusion we have reached, Honourable Justice Luke Malaba ceased to be a judge of the Constitutional Court and Supreme Court (at 0000 hours on 15 May 2021) when he turned 70 years. Equally, he ceased to be the Chief Justice of the Republic of Zimbabwe at that time.

Nothing tums on the letter of 11 May 2021; when it was written, that was the same day that the application was filed. The letter of 11 May 2021 was intended to take effect only on 16 May 2021, on which date the then incumbent would have ceased to be a judge some twenty-four hours earlier.

An absurd situation, which neither the Executive nor the Legislature would have intended, would have resulted whereby the country would be without a Chief Justice for the period of 24 hours, between 0000hours on 15 May 2021 and 0000 hours on 16 May 2021.

There would have been nothing to extend since he would have ceased to be a judge and Chief Justice of Zimbabwe.

Thus, any purported extension of the second respondent's occupation of the office of judge or Chief Justice remains a nullity because there was nothing to extend once he ceased to be a judge at the inception of 15 May 2021. This is so whether the extension is said to have been constituted by his election to remain in office or by the letter of 11 May 2021.

The celebrated statement in the case of MacFoy v United Africa Co. Ltd [1961] I AER 1169 decidedly seals the effect of that letter:

''If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad….,. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. lt will collapse."

ln the case of Muchakata v Netherburn Mine 1996 (1) ZLR 153 the Supreme Court of Zimbabwe (per KORSAH JA) said that if an act is void ab initio it is "void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised; nothing can depend on it."

In making these observations, we are mindful of the fact, that, the two applications were not based on the letter of 11 May 2021. That letter was produced in opposing papers.

Our conclusion is that the letter does not affect the conclusions which we have reached based upon an interpretation of the constitutional provisions considered above.

The Position of the other Judges of the Constitutional Court and Supreme Court

The effect of the conclusion reached above is that the persons who occupied the positions of judges of the Constitutional and Supreme Courts, prior to the amendment, cannot have their term in office extended beyond the age of 70 years based on section 186 of the Constitution as presently worded. This is because they held or occupied the concerned office before the amendment introduced by section 13 of the Constitution of Zimbabwe Amendment (No.2) Act 2021.

We point out, however, that, acting judges, be they in the Constitutional Court or Supreme Court, are not affected by the provisions of section 328(7) as read with section 186 of the Constitution 2013.

These include the 4th to 14th and the 18th respondents in so far as they have been acting Constitutional Court judges as well as the 15th, 16th and 17th respondents in case no. HC2128/21 in so far as they are substantive High Court judges who have been acting as Constitutional Court and/or Supreme Court judges.

There is no extension to the length of their term in office since they are just acting judges.

The Violations of the Applicants Rights

The applicants, in both applications, allege that the continued occupation of public office as judge and/or Chief Justice of Zimbabwe by the second respondent would violate their fundamental rights enshrined in section 56(1) and section 69(3) of the Constitution.

The parties accepted that the reference to section 69(4) in the draft order in HC2166/21 was an error, the correct and intended citation being section 69(3) of the Constitution....,.

Section 69(3) of the Constitution provides as follows:

"Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute."...,.

The second violation of fundamental rights alleged by the applicants in Case No. HC2166/21 is of section 69(3) of the Constitution.

It has been held, that, the right of access to courts is essential for constitutional democracy and the rule of law: Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC)…,.; De Beer N.O.v North-Central Local Council and South-Central Local Council 2002 (1) SA 429 (CC)…,.

ln the case of Bernstein v Bester N.O.1996 (2) SA 751 (CC)…, the purpose of the right of access to courts was explained by the Constitutional Court of South Africa as:

"To emphasise and protect, generally, but also, specifically, for the protection of the individual, the separation of powers, particularly the separation of the judiciary from the other arms of the State…,. (It) achieves this by ensuring that the courts and other fora which settle justiciable disputes are independent and impartial. It is a provision fundamental to the upholding of the rule of law, the constitutional state, the 'regstaatidee' for it prevents legislatures, at whatever level, from turning themselves by acts of legerdemain into 'courts'…,. By constitutionalizing the requirements of independence and impartiality the section places the nature of the courts or other adjudicating fora beyond debate….,."

We respectfully endorse the above exposition of the law.

Both the separation of powers principle and the rule of law are enshrined in section 3 of the Constitution 2013.

The essence of the rule of law is that any person may challenge the legality of any law, conduct, practice etc in a separate, impartial, and independent court or other forum - one that is free from the control of the perpetrator of the illegality; CURRIE & de WAAL “The Bill of Rights Handbook” 6th ed…,.

If a sitting judge can have his or her term of office extended by amendment of the Constitution just one week before he or she is due to retire, or judicial officers have their age limit extended contrary to the express provisions of the Constitution, which prevent incumbents from having terms of office extended for them while they are in office, questions will reasonably abound as to the extent to which the Court can be independent.

The intended extension of the length of time that the persons in office, as judges of the Constitutional Court and Supreme Court, do have the effect of compromising on the independence of the judiciary and the rule of law.

Significantly, the election to continue in office introduced by section 186(1), (2) and (3) of the Constitution is not an automatic guarantee that the judge concerned will continue in office. It is subject to acceptance by the President. It is not guaranteed. This has the effect of subjecting the term of office (or extension thereof) to the control of the Executive.

If any extension is to be afforded to the 2nd to 14th and the 18th respondents, then, there would be violation of the applicants right as protected by section 69(3) of the Constitution. This is so given the conclusion that we have reached, that, such extension contemplated by section 186 of the Constitution does not apply to persons who were in office as judges before the amendment.

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

This judgment is given in default of appearance by the respondents. I am much concerned by the conduct of the officials from the office of the Attorney General, the second respondent herein.

This was an opposed application.

The respondents, through the Attorney-General, filed a notice of opposition. The record indicates, that, the notice of set down was served personally on one Talent Undenge, the law officer in the Attorney General's office who runs its civil division at Masvingo. But, on the day of hearing, not only was there no appearance by anyone from the Attorney General, but, also, there was not a word or any advice on what the respondents position was. Yet the relief sought by the applicant has far reaching consequences.

The relief sought by the applicant has far reaching consequences in that he wants a declaration of constitutional invalidity of section 93(5a) of the Labour Act [Chapter 28:01] and section 8(3) of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15 of 2006 (“the National Employment Code of Conduct”).

The applicant says that section 93(5a) of the Labour Act violates section 68(3) and section 69(2) of the Constitution; that, section 8(3) of the National Employment Code of Conduct violates the right to the protection of the law as guaranteed by section 56(1) of the Constitution and that both section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct contravene section 134(b) of the Constitution.

As such, he wants his case referred to the Constitutional Court for final determination, allegedly in terms of section 167(3) of the Constitution.

In simple terms, section 93(5a) of the Labour Act, a recent amendment to the Labour Act (i.e. in 2015), empowers a labour officer to apply to the Labour Court for the enforcement of his or her determination against an employer.

Only the employer gets cited in such an application.

For that, the applicant says, the provision discriminates against employees, something contrary to section 68 and section 69 of the Constitution. These two provisions of the Constitution guarantee to every person the right to administrative justice and to a fair hearing.

As for section 8(3) of the National Employment Code of Conduct, the applicant wants it struck off on the ground that it contains a typographical error in that it refers to a non-existent provision. He says because of it, he became non-suited in his dispute against his employer. Yet, section 56(1) of the Constitution guarantees to everyone the right to equal treatment and protection before the law.

On the other hand, section 134(b) of the Constitution does not permit a statutory instrument (such as the National Employment Code of Conduct) to infringe or limit any of the rights and freedoms set out in the Declaration of Rights.

The Constitution is the supreme law of Zimbabwe. No other law can say something to the contrary and remain valid. The courts have the power and mandate to declare a statutory provision as being inconsistent with the Constitution. But, this function is not a light matter. It is not a power that is exercised arbitrarily. Laws are made by Parliament, a legislative body made up of two Houses. The men and women who sit in them take time to scrutinise, debate, and critique a law before it is passed. It is only in cases where the court is completely satisfied that a particular law is at war with the Constitution that it will strike it down.

In this case, with the respondents in default, I could have simply granted a default judgment and announced it ex tempore on the day of hearing. But, given what is at stake, I considered it prudent to reserve my decision and think through it properly, moreso as the applicant was not represented.

Even though it was evident someone with a glimpse of legal knowledge was advising and drafting the papers for the applicant behind the scenes, it was not that easy to quite grasp the factual matrix of the dispute and its trajectory from the moment it arose.

I ended up asking the applicant to file supplementary papers on what exactly had transpired, both at the workplace and in the labour “courts.”

The matter is an employment dispute. It has a chequered past.

The dispute erupted at the workplace. It bobbed there for a while. Eventually, it bounced into the chambers of the Labour Officer. From there, it escalated to the Labour Court. After that, it became a game of ping pong. The matter was thrown back to the labour office; back to the Labour Court; back to the labour office again; back to the Labour Court; back to the workplace; back to the labour office; back to the Labour Court; and, finally to the Supreme Court.

The superior court did not decide the matter. The applicant felt unstuck. He finally came to the High Court.

I heard the applicant on 27 August 2018. He tried his best. But, at the end, I was none the wiser. The employer was not cited as a party. As said already, the Attorney-General was in default. He and the first respondent had been barred anyway for failure to file heads of argument in accordance with Order 32 Rule 238(2) and (2a) of the Rules of this Court.

But, in a matter with such a rugged past, and given the nature of the relief sought, I could do with some properly reasoned arguments and a graceful presentation. Yet, the applicant is entitled to administrative justice in terms of section 68 of the Constitution.

Rule 238(2b) of the High Court Rules says, where a respondent fails to file heads of argument timeously he or she is barred. Thereafter, the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

I opted to hear the matter on the merits.

The facts were these:

In the beginning, the applicant was an employee of a trade union, the Zimbabwe Educational Scientific, Social and Cultural Workers Union. He was a Regional Officer based at Masvingo. He was dismissed for misconduct. The dismissal followed a disciplinary process in terms of the National Employment Code of Conduct.

The applicant wanted to appeal the dismissal. He said he faced a dilemma. The dilemma stemmed from what he perceived to be a typographical error in the National Employment Code of Conduct.

Evidently, there is such an error in those Regulations.

Section 8 of the National Employment Code of Conduct governs appeals at, and from the workplace. It provides for internal appeal structures at the work-place in the form of an Appeals Officer or Appeals Committee, depending on the size of the establishment or work place. Such internal appeal structures should not exceed two appeal authorities.

In terms of section 8(3) of the National Employment Code of Conduct, a person aggrieved by a decision can appeal, in writing, and within seven working days, to the Appeals Officer or Appeals Committee.

There is a problem with this sub-section.

It is imprecise. It does not say whose decision is appealable to the Appeals Officer or Appeals Committee. It says it is a decision “…, made in terms of section (2)…,.”

But, section (2) does not exist.

The substantive section 2 is an interpretation provision. It has nothing to do with disciplinary proceedings. Disciplinary proceedings, such as would lead to the termination of employment, are governed by section 6 of the National Employment Code of Conduct. So, section 2 cannot be the provision section 8(3) of the National Employment Code of Conduct purports to refer to.

At any rate, it is a technique of legislative drafting not to use brackets for numerals representing substantive, standalone sections in statutes.

So, if the reference in section 8(3) of the National Employment Code of Conduct cannot be to a substantive section 2, one would assume it is meant to refer to section 8(2) of the National Employment Code of Conduct. But, again, that cannot be. Section 8(2) does not deal with disciplinary processes. It is the one that provides for the internal appeal structures that should not exceed two authorities.

The applicant says, faced with such a dilemma, he looked elsewhere. He discovered that section 8(6) of the National Employment Code of Conduct is another provision dealing with appeals. That provision says a person who is aggrieved by a decision or manner in which an appeal is handled by the employer or the Appeals Officer or Appeals Committee may refer the case to a Labour Officer or an Employment Council within seven days.

The applicant says he considered it was section 8(6) of the National Employment Code of Conduct that applied to his situation because section 8(3) referred to a non-existent provision.

At any rate, his employer had no appeal structures as envisaged by the National Employment Code of Conduct. He referred his case to the Labour Officer the same day that he received the dismissal penalty.

That was in March 2015.

In terms of section 8(7) of the National Employment Code of Conduct, a Labour Officer, to whom a matter is referred in terms of section 8(6), can dispose of it in one of several ways set out in section 93 of the Labour Act. Before this section was amended in 2015, these ways included conciliation or a reference to compulsory arbitration. The Labour Officer had thirty days to dispose of the matter. It was through the amendment in 2015 that the Labour Officer was now clothed with the power to approach the Labour Court as aforesaid.

After the applicant had referred his dispute, the Labour Officer, for one reason or other, did not dispose of it within the prescribed thirty days. Two months after the expiry of the thirty days, the applicant applied to the Labour Court, asking it to dispose of his appeal in terms of section 93(7) of the Labour Act.

That was in May 2015.

Section 93(7) of the Labour Act is the provision that allows any party to a dispute to approach the Labour Court to dispose of it where a Labour Officer has failed to settle it through conciliation and has issued a Certificate of No Settlement, or has, for any reason, refused to issue such a certificate.

The Labour Court, four months later, referred the matter back to the Labour Officer with instructions to appoint an arbitrator to dispose of the applicant's appeal.

That was in September 2015.

That did not happen, apparently for two reasons:

(i) Firstly, the first respondent was phasing out the system of external arbitrators. As such, the applicant was advised, that, no arbitrator could be appointed in line with the directive from the Labour Court.

(ii) Secondly, the Labour Act had just been amended as aforesaid.

Among others, the said section 93(5a) of the Labour Act had just been inserted. Disputes of right, as opposed to disputes of interest, would now be resolved in accordance with the new provisions. Among other things, once a Labour Officer made a finding of unfair labour practice against an employer, he or she would have to approach the Labour Court for his or her decision to be confirmed.

The matter was referred back to the Labour Court, by a Labour Administration Officer, who requested for directions.

In March 2016, the Labour Court gave such directions.

It directed that the matter was to be heard by a Labour Officer in terms of section 93(5)(c) of the Labour Act. This is the provision that empowers a Labour Officer to find whether or not an employer is guilty of an unfair labour practice. If he or she makes such a finding, he or she can, among other things, order the cessation of the unfair labour practice and direct the payment of moneys and/or damages.

With the newly introduced section 93(5a) of the Labour Act, the Labour Officer is then to approach the Labour Court for confirmation of his or her decision.

The Labour Officer eventually set to hear the matter in line with the directive from the Labour Court.

In May 2016, he gave his ruling. He made a finding that he had no jurisdiction to determine the appeal. His reason was, that, the first time the applicant had referred his appeal to the Labour Officer (in March 2015) he had erred. He said in terms of section 8 of the National Employment Code of Conduct, no appeal lies to the Labour Officer from a decision of a disciplinary authority at the workplace. It is only an appeal, decision, or the conduct of an appeal authority that may be referred to the Labour Officer.

So, in the end, the Labour Officer held, that, he had no jurisdiction to determine the appellant's appeal because it was not an appeal against an appeal decision, but an appeal against the decision of a disciplinary authority in the first instance.

Before this ultimate conclusion, the Labour Officer had made the observation, that, instead of appealing to the Labour Officer in terms of section 8 of the National Employment Code of Conduct, as he had done, the applicant ought to have appealed straight to the Labour Court, allegedly in terms of section 92D of the Labour Act.

Section 92D of the Labour Act is the one that governs appeals to the Labour Court that are not provided for elsewhere in the Labour Act. It says a person who is aggrieved by a determination made under an employment code, may appeal to the Labour Court in the manner and time prescribed.

In September 2016, the Labour Court confirmed the ruling of the Labour Officer.

But, the applicant had applied to that court for condonation for late noting of appeal. Condonation was refused “…, for failure to exhaust local forum.”

The applicant went back to the workplace. He said heeding what the Labour Officer had said about appeals lying to them only from an appeal decision by, or conduct of, an appeals authority of the employer, he filed an appeal to the Appeals Officer/Appeals Committee a day after receiving the Labour Court's decision.

He also sought condonation for the late noting of the appeal. But, without referring it to the Appeals Officer or Committee proper, the employer, through the General Secretary, acting on external legal advice, dismissed the appeal and the request for condonation on the basis that there was no provision for an application for condonation in the National Employment Code of Conduct.

That was in October 2016.

The applicant appealed to the Labour Officer. He lost. The conclusion reached by the employer's General Secretary was upheld.

The Labour Officer took his decision to the Labour Court for confirmation, purportedly in line with the new section 93(5a) of the Labour Act.

The Labour Court declined to do so on the basis, that, the Labour Officer had an inherent power to hear an application for condonation which he should have exercised and that the decision by the employer, which the Labour Officer had wrongly upheld, was irregular in that it had been made by a fellow employee supplanting an Appeals Committee.

The Labour Court referred the matter back to the workplace and directed the employer to set up an appeals structure for the determination of the applicant's appeal within thirty days, or such extended period as might be granted. The Labour Court also directed, that, in the event that the employer failed to hear the appeal as directed, then, the applicant would automatically be reinstated without loss of salary and benefits while the parties might be taking their case to any next level.

That was in May 2017.

The employer was aggrieved by the decision of the Labour Court. It appealed to the Supreme Court. It took a point in limine, that, by section 93(5a) of the Labour Act, only when a Labour Officer has ruled against an employer is he or she required to approach the Labour Court for confirmation of his or her decision, not, as was the case in this matter, where the Labour Officer has ruled against the employee.

The applicant said he conceded the point in limine. He presumed the Supreme Court would uphold it because it had done so in a previous case where the same point had been raised.

The applicant felt he was back to nowhere.

His appeal was never determined on the merits.

He felt the culprit was section 93(5a) of the Labour Act that allows approaches to the Labour Court by a Labour Officer only where he or she rules against the employer, but not where he or she rules against the employee.

The employee who loses before a Labour Officer has nowhere else to go, whereas an employer who loses before the same Labour Officer is actually and automatically guaranteed another hearing before a court.

The applicant also felt, that, the ambiguity brought about by the error in section 8(3) of the National Employment Code of Conduct blocked his right of access to the courts.

He then turned to the High Court for an order of invalidity against the two offending provisions.

Interestingly, in their notice of opposition, the respondents agreed with the applicant in relation to section 93(5a) of the Labour Act. They said:

“Respondent concedes to the challenges against 93(5a) of the Labour Act [Chapter 28:01] as amended and has since sought to repeal the provision in its current Labour Act Amendment Bill. I however deny that section 8(3) of Statutory Instrument 15 of 2006 violates the Applicant's rights for the reasons advanced in my paragraphs 9 and 10.”

But, despite their denial in regards to section 8(3) of the National Employment Code of Conduct, the respondents essentially conceded the error. They said:

“Indeed, the said section makes reference to a section 2 which is not there; but, however, a departure from the ordinary grammatical interpretation of the section will lead to a reasonable conclusion that the section being referred to is section 6.”

Arguing that a diligens paterfamilias applying their mind to the intention of the Legislature would have come to the logical conclusion that section 8(3) of the National Employment Code of Conduct meant to refer to section 6, the respondents said the remedy sought by the applicant was outrageous and should therefore be dismissed with costs.

Justice must not only be done. It must also be seen to be done.

The respondents openly admit inherent problems or errors in pieces of legislation made by, and administered by them.

In relation to section 93(5a) of the Labour Act, the respondents promised repeal. That has not happened.

In relation to section 8(3) of the National Employment Code of Conduct, the respondents expressly admit the error but urge the applicant to resort to some tenet of construction to unravel what they meant to say.

Yet, in his quest for justice, the applicant has, for more than three years, been shunted from pillar to post by the administrative and adjudication structures under their purview. These structures have differed in their interpretation of the impeached provisions.

What is more, as the respondents are mulling getting rid of section 93(5a) of the Labour Act, the Supreme Court, in an unrelated case, the judgment of which was delivered at about the same time the applicant was filing this application with this court, has impugned the provision and urged the Legislature to have a look at it.

This was in Drum City (Pvt) Ltd v Garudzo SC57-18.

The superior court noted, that, section 93(5a) and (5b) of the Labour Act do not empower the Labour Court to confirm a draft ruling of a Labour Officer made against an employee. The employee is excluded from the confirmation proceedings. Yet, he or she has a direct and substantial interest in those proceedings.

He or she has a right to be heard.

The superior court further said, that, a procedure that says a Labour Court can sit for the confirmation or non-confirmation of a ruling by a Labour Officer, in the absence of an employee, who is an interested party, is an irregularity and a travesty of justice.

The court noted a myriad of problems posed by such a procedure, not least:

(i) The fact that even where the ruling by the Labour Officer is in favour of the employee, but is not confirmed by the Labour Court, the employee who is affected by the non-confirmation cannot appeal. Conversely, where the Labour Court confirms the ruling, the employer may wish to appeal to the Supreme Court, but, the employee is necessarily absent. Yet the outcome at the Supreme Court may be adverse to the employee.

(ii) The fact that even where the Labour Court confirms the ruling against the employee and he or she wants to enforce it by execution, the writ cannot be in his or her name because that name appears nowhere in the final orders.

As a way around the absurdities created by section 93(5a) of the Labour Act, the Supreme Court suggested, that, the employee should always be joined as a party to the confirmation proceedings before the Labour Court. However, the superior court also urged the Legislature to seriously reconsider the provision - exactly the same thing the respondents herein have promised they are doing.

Therefore, it seems obvious that section 93(5a) of the Labour Act is impeachable. The respondents concede it. The Supreme Court virtually confirms it.

The question of the declaration of constitutional invalidity of section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct was not before the Supreme Court.

It is squarely before me now.

I hold that section 93(5a) of the Labour Act is ultra vires section 56(1) and (3) of the Constitution that guarantee the equality of all persons before the law, and the right not to be treated in an unfairly discriminatory manner on the grounds of, inter alia, economic or social status.

It also violates section 68 of the Constitution that guarantees the right to administrative justice that is, inter alia, lawful, efficient, reasonable, impartial and both substantially and procedurally fair.

The applicant says he seeks the declaratur in terms of section 14 of the High Court [Chapter 7:06].

But, in terms of this provision, a declaratur, it is not sought by anyone and anyhow; otherwise, any public busybody or watchdog whose hobby it is to surf the legislative landscape for any statutory provisions mis-aligned with the Constitution would clog the judiciary with endless suits for declarations of constitutional invalidity.

A mover for a declaratory order, under section 14 of the High Court Act, must demonstrate more than mere academic interest. The court does not decide abstract or hypothetical questions: see Adbro Investments Co. Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T)…, and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S). He or she must show the existence of some tangible and justifiable advantage to himself.

In terms of section 14 of the High Court Act, a person who qualifies to move for a declaratory order is one who has an interest in having his or her existing, future or contingent right or obligation determined even if he or she cannot claim any relief consequential upon such determination…,.

In the draft order, the applicant does not seek the determination of existing or future or contingent rights. He does not seek determination of any rights at all. His woes with his employer are all in the past now.

I do not underrate them. It is only because he has been importunate that the matter is now before this court.

But, under section 14 of the High Court Act, one does not seek a declaratur for the determination of rights existing in the past.

I am mindful that section 14 of the High Court Act does not require that one who seeks a declaratory order should claim any relief consequent upon the determination by the court. But, at least, he or she must have an existing or future or contingent right that the court should, or will determine.

It seems the undisclosed lawyers handling the applicant behind the scenes eventually wisened up to this pitfall. They filed heads of argument, even though as a “self-actor” the Rules do not require the applicant to file any. In the very last paragraph, it is submitted, that, in addition to the relief sought in terms of the draft order, the applicant should be granted a further remedy as follows:

(i) That, in the case of the impugned section 8(3) of the National Employment Code of Conduct, the applicant should be granted the right to file an appeal against the decision of the disciplinary authority to the internal appeals authority; or

(ii) That, in the case of section 93(5a) of the Labour Act, the applicant should have the right to appeal against the ruling by the Labour Officer to the Labour Court.

I consider that the applicant's request in the heads of argument brings him within the purview of section 14 of the High Court Act. His claim in the draft order ceases to be merely academic.

But, even if I should be wrong on this, I consider that section 85 of the Constitution has widened the scope under which a declaratur may be sought if it is in relation to the enforcement of fundamental human rights and freedoms under Chapter 4 Part 4 of the Constitution.

In this case, the rights the applicant alleges have been infringed in relation to himself fall under this part of the Constitution. They are the right to equal protection before the law and the right not to be discriminated against (section 56 of the Constitution); the right to administrative justice (section 68 of the Constitution) and the right of access to the courts or some other tribunals (section 69 of the Constitution).

Section 85 of the Constitution reads:

“85 Enforcement of Fundamental Human Rights and Freedoms

(1) Any of the following persons, namely —

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

Thus, a right existing in the past which an applicant can show was infringed in relation to themselves can support a claim for a declaratur.

However, my conclusion above is only in relation to section 93(5a) of the Labour Act.

I am not satisfied that it was really the typing error in section 8(3) of the National Employment Code of Conduct that led the applicant to adopt the course that he did.

Despite that error, it is evident, even as presently worded, that the reference of a matter to a Labour Officer that section 8(3) envisages, is not from a decision of a disciplinary authority at the first instance. It is from a decision or conduct of an Appeals Authority on appeal.

It was wrong for the applicant to invoke section 8(6) of the National Employment Code of Conduct and assume it applied to his case.

In the final analysis, the applicant, having sought no order as to costs, the following order is issued:

1. It is hereby declared that section 93(5a) of the Labour Act [Chapter 28:01] is in conflict with section 56(1) and (3); section 68(1) and section 69(3) of the Constitution of Zimbabwe and is therefore invalid.

2. The declaration of constitutional invalidity in paragraph (1) above may be referred for final determination by the Constitutional Court of Zimbabwe in terms of section 175 of the Constitution and the Rules of that Court.

3. Subject to paragraph (2) above, the applicant is hereby granted the right to appeal to the Labour Court, as soon as practicable, the decision of the Labour Officer/Designated Agent, E Muzvidziwa, Esquire, handed down on 9 December 2016.

4. There shall be no order as to costs.

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant's former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain ...

FACTUAL CONSPECTUS

The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3,986=61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.

Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of section 93 of the Labour Act [Chapter 28:01] (“the Act”). The dispute was placed before the respondent for a hearing.

It was her case, that, no proper investigations were conducted into the allegations levelled against her, and, further, that she was not granted the right to be heard before she was summarily dismissed.

She thus claimed damages for unlawful dismissal totalling US$23,253=34.

Before the labour officer, the parties did not agree on Ms Khan's monthly salary, as the appellant alleged that it was US$750 while Ms Khan argued that it was US$1,500. The respondent ruled in favour of Ms Khan on this point, and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages in lieu of reinstatement amounting to a total of US$9,000.

Subsequently, the labour officer applied to the Labour Court in terms of section 93(5a) of the Labour Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings.

The appellant opposed the application, but, the court a quo, after hearing oral argument from the appellant, granted an order confirming the ruling.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by the decision of the court a quo and has appealed against it to this Court.

It argues in the main, that, the court a quo erred in simply confirming the respondent's award to Ms Khan of US$9,000 as damages without fully addressing the principles of law to be applied thereto. It further argued, that, the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property, and, in addition, had failed to avail herself for the hearing which led to her dismissal.

The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing.

The court observed, that, the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.

Ms Khan, was not cited in the appeal before this Court.

Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.

SECTION 93(5a) OF THE LABOUR ACT – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS

Counsel for the appellant rightly conceded, that, the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court a quo and in this Court.

Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.

The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of section 93(5a) of the Labour Act.

The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer's draft ruling in terms of section 93(5b) of the Labour Act.

It is noted, that, prior to the Labour Amendment Act No.5 of 2015, labour disputes of right would go before a labour officer for conciliation, and, if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard.

Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party, on the other hand, had the right to appeal against the award to the Labour Court.

The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of section 93(5a) and (5b) of the Labour Act was meant to address this mischief.

Subsections 93(5a) and (5b) of the Labour Act provide as follows:

“(5a) A labour officer who makes a ruling and order in terms of ss(5)(c) (this paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights) shall as soon as practicable -

(a) Make an affidavit to that effect incorporating, referring to, or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) Lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down for hearing (the “return day” of the application) to do or pay what the labour officer ordered under ss(5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”…,.

My interpretation of the two provisions cited suggests the following procedural steps;

(a) The labour officer, after making a ruling in terms section 93(5)(c)(ii) of the Labour Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based.

(b) The labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).

(c) The labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.

(d) Should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.

(e) On the date of hearing (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment.

(f) Thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order (obtained in default of appearance by the respondent, or after a hearing by the Labour Court) for registration.

(g) Upon submission of the order to the relevant court for registration, it shall have the same effect, for purposes of enforcement, as any civil judgment of that court.

It is to be noted from the above, that, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in sections (5a) and (5b) of the Labour Act.

In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) of the Labour Act which specifically provides for a ruling, like the one in casu, in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute.

I am satisfied, that, the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer, which is made in favour of an employer and against an aggrieved employee.

It follows, that, the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.

It is noted further, that, the wording of section 93(5b) of the Labour Act, albeit not specifically stating so, excludes the employee concerned from the confirmation proceedings.

This is an employee who would have been an active party in, as well as the instigator of the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her.

In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.

It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests.

Even the nature of the hearing mentioned in section 93(5b) of the Labour Act is not clear (the hearing is certainly not an appeal against nor a review of the Labour Officer's ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer's ruling) one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.

The employee, on these grounds, can, in my view, properly apply to be joined to the confirmation proceedings in terms of Rule 33(2) of the Labour Court Rules, SI150/17.

The joinder of a party mero motu by the court is not expressly provided for in Rule 33 of the Labour Court Rules, however.

I am nevertheless satisfied, that, this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court, in a deserving case, to order mero motu the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings.

Such an order would ensure full compliance with the common law rule, audi alteren partem.

The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities:

CILLIERS AC, LOOTS C and NEL HC, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1, at page 215, explain non-joinder by stating as follows:

“A third party who has, or may have a direct and substantial interest in any order the court might make in proceedings, or, if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that such a person has waived the right to be joined…,; in fact, when such person is a necessary party in the sense that the court will not deal with the issues without a joinder being effected, and no question of discretion or convenience arises.”…,.

The meaning of direct and substantial interest is explained at page 217 to 218 as follows:

“A 'direct and substantial interest' has been held to be 'an interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation'. It is 'a legal interest in the subject matter of the litigation, excluding an indirect commercial interest only'. The possibility of such an interest is sufficient, and it is not necessary for the court to determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter of the litigation but also in the outcome of it.”…,.

It hardly needs emphasis, that, albeit not applicable in casu, an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore, in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.

The employee, in any case, would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment.

The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order mero motu that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent.

That, the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates (see HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1 at pages 208 to 209);

“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder, the court should raise it mero motu to safeguard the interest of third parties and it should decline to hear the matter until such joinder has been effected, or until the court is satisfied that the third parties have consented to be bound by the judgment or have waived their right to be joined.”

When this is related to the circumstances of this case, it cannot, in my view, be contested that the joinder of the employee, Ms Khan, was necessary.

While it is noted, in casu, that, the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored, that, the court effectively heard evidence from one side of the dispute and not the other, before making its determination.

As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling. It then essentially weighed the respondent's submissions against what was contained in the affidavit of the labour officer (before the court a quo, the labour officer briefly repeated the facts of the dispute and the details of the award she had made), and made its determination.

The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the quantum of the award. Nor, however, could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking, that, the employee had been accorded the unfair advantage of having her case 'argued' for her by the labour officer.

There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings:

(i) Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, section 93(5b) of the Labour Act affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter.

It is evident from section 93(5b) of the Labour Act, that, before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is, in reality, not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect.

He cannot, therefore, be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation.

Defending the labour officer's ruling should properly be the province of the person directly affected by it, that is, the employee concerned.

In my view, the Labour Court's confirmation or non-confirmation of the ruling, after effectively hearing one side of the dispute, is, at best, an irregularity, and, at worst, a travesty of justice.

(ii) Secondly, the procedure presupposes, that, a ruling made by the labour officer in favour of an employee will meet that employee's satisfaction.

It shuts the door, for instance, on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that quantum, in confirmation proceedings before the Labour Court.

A joinder to the proceedings would accord the employee the opportunity to, as it were 'cross oppose' the confirmation proceedings in the desired respect.

(iii) Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court, for one reason or the other, the employee might wish to take up the matter on appeal. He would, however, be hamstrung by the fact, that, he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order on his or her behalf.

(iv) Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.

One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent.

This is what happened in casu.

All too often, this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal.

Equally, often, the respondent cited in the appeal, that is, the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument. Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer's appearance.

Ordinarily, where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party.

The point has already been made, that, the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee's knowledge.

The injustice of such an outcome needs no emphasis.

(v) Finally, the appearance of the labour officer, as the respondent, in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems.

In such cases, the question of the labour officer's competence to so appear has arisen.

In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis? It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.

Other aspects of the procedure suggested by subsections (5a) and (5b) of section 93 of the Labour Act merit some comment.

Section 93(5b) of the Labour Act makes it clear, that, the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court's confirmation of the labour officer's ruling.

Further, while section 93(5b) of the Labour Act clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution.

Without being cited as a party, there would be confusion as to whether the 'claimant' that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite locus standi, and, moreso because section 93(5b) does not mandate him to do so.

The danger of the Labour Court's order being rendered a brutum fulmen becomes real.

In conclusion, while one might argue, in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view, that, the absurdities could not have been consciously intended by the legislature.

The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court.

The legislature might well wish to consider addressing this, and the other concerns, set out in this judgment.

DISPOSITION

When all is said and done, and in view of the foregoing, it is my finding, that, there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can, therefore, not be allowed to stand.

In the result, the following order is made:

1. The appeal be and is hereby allowed.

2. The proceedings and judgment of the court a quo be and are hereby quashed.

3. The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.

4. Each party shall bear its own costs.

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

All in the love of a pet! Many linguistic authors have described a pet to include “favourite, preference, darling, idol, jewel, apple of one's eye, matinee, or, in French, enfante gâte.”

Having been frustrated or failed by human friends, whether male or female, humans all over the world from time immemorial had experimented with the animal world to find a real mate or friend. These animal friends stretch from domestic to wild animals, felines, bovines, canines, serpents, birds, fish and others, the list is endless. Some of the pests are fiery and dangerous to accommodate in a residential environment, but all has been done in the name of pet love.

These pets, to some of the humans, evolved into both great and false friends, and, as the saying goes “false friends are like migratory birds, they fly away in the cold weather.”

But, to the appellant in this case, he had managed to show a true character of a friend.

It may seem superfluous to say anything more since good friends are among life's greatest blessings and the lack or loss of them the saddest of deprivations, anything which reminds them of the value of a good friend does not come amiss.

The appellant bought a canine pet when it was young and cared for it for a considerable period which ran into years. During that period, a great alliance developed. As usual, friendship is a hard, strong, slow growing beautiful thing. The soul in which friendship grows is the social set up in which one lives.

Friends are made through the heart not the eye.

The appellant was not the only one who won the heart of the dog, but, his sons and the whole family became a total symbiosis to the dog - that is, from the photographs which were produced in the court a quo, filed of record.

The photographic images depict a real charming togetherness.

The Hebrew Scriptures accurately captures that “A faithful friend is a sure shelter. Whoever finds one has found a rare treasure. A faithful friend is something beyond price, there is no measuring his worth.”

If the dog could have been asked, during its life time, it could have equally vividly described how glorious its life was in the company of the appellant's family.

Friendship begins with a long standing invitation. It says to the other you get on well with; let us tear down the barriers between us, let us pledge ourselves not to fight one another, but rather to comfort, challenge and support.

One has to use a mirror to see one's face. You use a friend to see your soul. Thus, friendship is a union of one mind with another.

Men become like those they associate with.

Experience globally shows, that, pet lovers from the western world go to the extent of sharing their beds and relaxing rooms with their pets, and the majority in the orient dismiss their dogs to the outside when they retire, and, in most instances, the pet or dog has to find a warm place for the night; and, for the merry makers, they “patrol” the environment exposing themselves to the local authority shenanigans, who, in the spirit of controlling infested dogs, end up shooting residents pest - as what happened in this case.

On 15 March 2018, the appellant issued summons against the local authority, and its employees, claiming:

“(a) Payment of the sum of $2,800 being special damages;

(b) Payment of the sum of $200 being general damages;

(c) Interest a tempore morae from the date of judgment to date of payment; and

(d) Costs of suit.”

According to the synopsis of the appellant's particulars of claim filed in the Magistrate's Court, the first respondent is the local authority, the second respondent is the Town Secretary, and the third respondent is the Chief Security Officer.

On 16 July 2017, and at 21:25 hours, the respondent's employees wrongfully and unlawfully shot and killed the appellant's dog at the appellant's House No.1187 Mabvazuva Suburb, Rusape.

As a result of the respondent's wrongful and unlawful conduct, the appellant suffered damages, detailed as follows:

(a) Special damages for money spent on the dog: purchase money as a puppy, its upkeep, castration, dipping chemicals and treatments the dog received for the continuous 9 years the appellant had the dog all totalling to $2,500; the dog's market value of $300. Total $2,800.

(b) General damages for trauma, pain and suffering which includes: sentimental value, loss of companionship, love and affection: $1,000.

Emotional distress, that is to say, seeing the dog die, the time it is going to heal the wound left in the appellant's heart and mind caused by the sight of a loved pet dying after being heartlessly butchered, which dog the appellant had not anticipated would die in that manner. As he was in the process of getting ready to feed it with a meal, it died, having never tasted: $1,000.

In the respondents plea filed on their behalf, they contended, that, they were working with the Zimbabwe Republic Police and other interested persons.

On the day in question, Sunday was a working day, stray and feral dogs spread diseases and attack people - even on Sundays. The dogs, in general, including the appellant's, were shot after all necessary legal steps have been taken, and were shot by a police detail.

Hence, the respondents conduct was lawful and guarded by the police.

The appellant did not suffer any damages at all, or, even if the appellant suffered any damages, he did not suffer damages shown on the pleadings.

The respondents denied that any of the dogs shot belonged to the appellant. The appellant was put to strict proof.

The matter proceeded to trial, and, after the court a quo heard all the parties, proceeded to dismiss the appellant's claim.

The appellant noted an appeal against the learned magistrate's judgment on 9 January 2019.

The grounds of appeal cover 10 paragraphs. They are not specific, and they cover both fact and law stretching from statutes and by-laws.

I will try to decipher from this thicket what the appellant sought to frame as grounds of appeal.

(1) The learned magistrate was biased against the appellant who was a self-actor, and, in so doing, she erred.

(2) The learned magistrate erred by making a finding based on a document which was not produced.

(3) The learned magistrate erred in refusing to go for an inspection in loco.

(4) The learned magistrate erred in justifying the killing of the dog; the respondents should have been found liable of the wrongful shooting of the dog.

(5) The learned magistrate erred in dismissing the appellant's claim for damages.

These five grounds, I conclude, may form the pith of the appellant's appeal.

In future, litigants are encouraged to seek the advice of legal advisory centres, like the Legal Aid Clinic, to prepare grounds of appeal so as to crisply outline issues for determination by the court.

The appellant went on to write a long essay and labelling such as heads of argument.

Throughout all the pleadings and what he termed the pleadings and what his story is consistent. The local authority killed an innocent dog which was at its owner's stead. The respondents ought not to have resorted to killing the dog but should have captured it.

WHETHER THE MAGISTRATE WAS BIASED AGAINST APPELLANT WHO WAS A SELF ACTOR

The appellant submits, that, the trial magistrate was biased, selective, and generally did not treat him fairly simply because he was a self-actor during the proceedings.

The allegations are not explained by the appellant.

On one occasion, the appellant made an application to have a witness for the defendants recalled, and explained why the witness had to be recalled. The defendants counsel opposed the application; the trial magistrate gave a ruling why such procedure was not available to the appellant.

Later, whilst assessing the parties evidence, the court a quo preferred to believe the evidence of the defendants to that of the appellant and went on to point out areas of discontent in the appellant's case.

The appellant was not happy at all about that evaluation and analysis.

The appellant proceeded to label the learned magistrate as a “player and umpire” at the same time and the appellant labels himself a victim and villain.

An examination of the proceedings reflect, that, the appellant was allowed to present his matter freely and was afforded adequate time to cross examine the witnesses without interference.

He was allowed to prepare closing submissions at the end of the trial.

His main grievance is that he lost the claim, but, that should not form the basis of calling a trial court biased and partial.

The allegations are serious, but, in this court's view, baseless.

This ground of appeal borders on contempt of the trial magistrate, moreso where no particulars of such bias are provided.

Judicial officers deserve every respect wherever possible and do not deserve to be labelled partial without providing details of such. The learned magistrate patently looked at the whole matter and gave reasons for its decision or judgment....,.

The appellant should be reprimanded for laying unjustified accusations against a court official, and, at the same time, it is also desirable that a judiciary officer must try by all means, by the way he or she conducts the proceedings, that he or she should not be subject to criticism by litigants by trying to be as far as possible reasonably fair.

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

“Much ado about nothing.”; 'Storm in a tea cup.'

One cannot find a better phrase to aptly describe the comedy of errors displayed by the National Prosecuting Authority, and, in particular, its Acting Prosecutor General.

An important and serious case involving a high ranking Government and Constitutional appointee in the stead of the Prosecutor General, who is the head of the National Prosecuting Authority, albeit on suspension, was reduced to a huge fuss over a trifle.

Incidentally, William Shakespeare, the great English poet, play-writer, and actor was the author of both comedies 'Much Ado About Nothing' and 'Comedy of Errors.'

The trifle, of course, is the recusal of the judge, myself, from presiding over the accused's trial.

I do not, however, suggest that an application for recusal of a judge is trivia. It arises from the right to a fair hearing by an impartial and independent tribunal.

The trivia arises from the fact, that, it is a simple procedural application which does not go to the resolution of the merits of a case and ought not to derail or delay the due administration of justice.

Ordinarily, an application for recusal of a judicial officer from presiding over a matter placed before him is a routine procedure. Such applications seldom take the form of protracted argument as obtained in this case.

Usually, where parties are legally represented, counsel will discuss the concerns of the party who seeks to have the judicial officer recuse himself/herself beforehand. It should never be a hide and seek game. The party with concerns may, in the process of their discussion, disclose such matters unknown to the other party as would inform the other party of the reasons why he or she believes that a particular judicial officer should not handle the matter.

Normally, counsel will then make a courtesy call upon the judicial officer concerned and the party seeking the recusal will advise the judicial officer of the concerns of his or her client.

The judicial officer may, at that stage, find that the concerns raised ground good cause for recusal. In such a case, the judicial officer will simply agree to the recusal and cause the matter to be allocated to another judicial officer.

The issue, in other words, is dealt with administratively.

Where the judicial officer is not inclined to recuse himself or herself because there is, in his or her opinion, no just cause for the recusal, he or she will direct that formal application is made in open court upon the matter being called. The judicial officer will then make a determination on the application.

Applications for recusal of the judicial officer, where formal application is necessary, are, under the ordinary course of procedure, dealt with summarily.

The judicial officer will pronounce his or her recusal or refuse the motion at the end of argument so that proceedings are not delayed further over who should preside over them.

Regrettably, in this case, I had to reserve judgment because of the conduct of the National Prosecuting Authority and its Acting Prosecutor General; the latter being the culprit or spoiler who sought to throw a monkey wrench in the works, or, put simply, who conducted himself in a manner which was inimical, pernicious, or detrimental to the smooth conduct of proceedings in this matter.

The bungling by the Acting Prosecutor General and his seeming disdain or disrespect for the authority of the court, or myself, necessitated the need to cause a transcription of the proceedings to be prepared for posterity and reference.

Background

The accused person is facing six (6) counts of Criminal Abuse of Duty as a Public Officer as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In the alternative, he faces six (6) counts of defeating or obstructing the course of justice in contravention of section 184(1)(b) of the Criminal Law (Codification and Reform) Act.

On 16 November 2016, the accused person was indicted to the High Court for his trial by the Provincial Magistrate in terms of the relevant provisions of sections 65 and 66 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The indictment papers were prepared by or on behalf of the Acting Prosecutor General who signed them.

The Acting Prosecutor General was obliged, in terms of section 66(7) of the Criminal Procedure and Evidence Act to, and did, lodge copies of the indictment papers whose service he caused to be made upon the accused person.

Once indicted or committed to the High Court for trial, the case became deemed as pending trial before this court.

The trial date was fixed as 13 February 2017 by the Acting Prosecutor-General.

It is necessary, at this stage, to note, that, administratively, at the High Court Harare, the National Prosecuting Authority has three criminal trial court rooms allocated to it. There is also another court which exclusively deals with bail applications. There are also two Criminal Appeals Courts devoted to dealing with Criminal Appeals.

These six (6) courts are created for discharge of the prosecutorial mandate of the National Prosecuting Authority as set out in section 258 of the Constitution of Zimbabwe (2013) as read with section 12 of the National Prosecuting Authority Act [Chapter 7:20] and for disposing of bail applications and appeals.

My judgment, however, focuses on the criminal trial courts.

To state the obvious, the criminal trial courts are court A, B and D.

Administratively, the National Prosecuting Authority is the one which sets down its cases in the said courts.

The National Prosecuting Authority prepares the court roll or cause list each High Court term. The National Prosecuting Authority's set down office is based at and operates from its offices.

The question then arises: “How does a judge become seized with a criminal trial?”

The procedure is, that, the administrative head of the High Court, through divisional heads, simply assigns a judge to a particular court for a certain period. A duty roster is prepared and does not depend upon the cases set down by the National Prosecuting Authority in a particular court.

The duty roster is not a secret document, and the National Prosecuting Authority knows before the beginning of each court term as to which judge will be presiding in each of the criminal trial courts.

I have set out the above administrative process to show that the National Prosecuting Authority knew long before the trial date of the accused person that the judge who was presiding in Court A, in which the case was enrolled, was myself.

It was not as if a judge, myself, was specifically assigned by the court administration to deal with the case in casu.

It will therefore be apparent, when I deal with the merits of the recusal application, that, the Acting Prosecutor General must have known who the presiding judge in Court A, in the first term of 2017, was.

By not seeking the recusal of the judge from presiding over the case before the set down, it meant that the National Prosecuting Authority, and its Acting Prosecutor-General, did not have any qualms with the judge whose background and past connection with the National Prosecuting Authority, and the accused, were matters within their peculiar knowledge and largely public knowledge because the fact of the judge having been a past board member of the National Prosecuting Authority was public knowledge. The appointment to the Board was gazetted in the Government Gazette.

It should also be noted, that, the existence of the National Prosecuting Authority Board derives from section 259(10) of the Constitution as read with section 8 of the National Prosecuting Authority Act.

The judge, as is common cause, and, upon a reading of the National Prosecuting Authority Act, was a ministerial appointee who did not owe his appointment to the Prosecutor General or any member of the National Prosecuting Authority as listed in section 4 of the National Prosecuting Act.

The judge, therefore, did not owe any allegiance to the Prosecutor-General but to the National Prosecuting Authority and the State.

Admittedly, whilst the Prosecutor General was, and is, the Board Chairperson of the National Prosecuting Authority, he has no power to appoint or dismiss a Board member.

The relationship between the judge, as a Board member, has to be considered as professional where the duties of Non-Executive Board members are clearly spelt out in the Constitution and the National Prosecuting Authority Act.

In particular, in the exercise of its mandate, the Board would, and was, guided by section 260(1) of the Constitution which guarantees the independence of the Prosecutor General in exercising his or her functions.

Section 259(10) of the Constitution is clear, that, the function of the Board is to employ persons who will assist the Prosecutor General in discharging that office's sanctions.

Section 6 of the National Prosecuting Authority Act reinforces the independence of the Prosecutor General from being subject to the Board.

In short, the Board superintends the human capital side of the National Prosecuting Authority - except for the Prosecutor General.

The issue of the relationship between the Board and the Prosecutor General has to be ventilated, in summary, because, as will become apparent in this judgment, the Acting Prosecutor General raised it as a ground for recusal of the judge, noting that the judge had been a Board member of the National Prosecuting Authority with the accused as Chairperson in his capacity as Prosecutor General.

In other words, the Acting Prosecutor General's view was that the statutory professional relationship between the Prosecutor-General and the judge, as Board member, was good ground for the judge to recuse himself from presiding over the present case.

It is also important to note, at this stage, that, whilst the judge was appointed Board member of the National Prosecuting Authority in or about December 2014, the indictment against the accused person relates to the period 20 October 2009 to 3 June 2010, in respect of the first five (5) counts, and to 29 January 2016 in respect of the sixth or last count.

The judge was not a Board member during the periods mentioned in the indictment.

The National Prosecuting Authority Act was gazetted on 11 July 2014. The Board and National Prosecuting Authority was not in existence by June 2010.

The judge had long been appointed to the High Court bench, on 7 September 2015, by the time the allegations against the accused person of 29 November 2016, in count 6, occurred.

These considerations would have been relevant, and played in the mind of the judge in considering whether he saw or felt cause to unilaterally recuse himself from presiding over the case.

The facts alluded to above were within the knowledge of the National Prosecuting Authority, and, hopefully, its Acting Prosecutor General, before the accused's trial date.

Any other relationship which the judge may have had in interacting with the National Prosecuting Authority and its Prosecutor General, when the judge was still a practising legal practitioner, would have been known by that office.

The question which begs for an answer is: why the National Prosecuting Authority was content to have the judge sit in the matter and only make a turn round after the hearing of the case had commenced and certain orders and directives given.

Is it because the National Prosecuting Authority was expecting a pre-conceived result and became apprehensive that its expectations may flounder?

The timing of the application cannot escape speculation or conjecture as to whether or not it was well meaning and devoid of other extraneous considerations other than the pursuit of fair, just, impartial, and transparent justice deliverance.

Events of 13 February 2017

On the morning of 13 February 2017, the lead prosecutor, Mr Chingwinyiso, made a courtesy call in the judge's chambers with two of his assistant prosecutors and the accused's counsel, Mr Mukweva.

After introducing themselves, I asked the prosecuting team if they were ready to proceed and if the defence team was also ready to proceed.

I was advised that the defence had served the prosecution with an application in court that morning and that the prosecution had not been made aware, beforehand, of this application.

I directed that whatever application it was should be dealt with in court.

I was advised that the lead defence counsel, Advocate Thabani Mpofu, could not come to chambers as he was arranging to postpone another matter.

The rest of what then transpired thereafter is captured on record and the same has been transcribed.

It will be noted, that, I proceeded to court without any hint by the prosecuting team, whatsoever, that my presiding over the trial was an issue.

When the case was called, and after counsel introduced themselves, Mr Mukweva, for the accused person, formally advised the court that Advocate Thabani Mpofu, whom he had instructed to represent the accused person, was still tied up in another court in a civil matter.

The court allowed the defence a brief adjournment for defence counsel to find out the position with Advocate Mpofu on his availability. The court also asked Mr Mukweva whether the trial would be proceeding.

He indicated that the defence intended to make an application which had been prepared and served on the prosecution team in court. He submitted that the application had been served late because counsel prepared it late. Mr Mukweva indicated, that, the application would be made by Advocate Mpofu.

State counsel, Mr Chigwinyiso, raised his objections to how the defence had sought to serve the application in court. He indicated that the application could not be considered as having been served without a return of service in the form of the stamp of the National Prosecuting Authority to evidence that it had been received.

Mr Chigwinyiso sought a deferment of the case to the following day.

The court was not inclined to postpone the case before it was put in the picture of what exactly the application was about and before the issue of the availability of Advocate Mpofu was dealt with.

Before adjourning the case, the court asked counsel whether the application had been filed because there was no copy of the same on record.

Mr Mukweva indicated that he had just had the application issued by the Registrar and had brought all stamped copies to court.

I did not consider that this was proper because the Registrar should have retained the copies of the application for the record.

I directed Mr Mukweva to let the court have copies of the application and he handed, over the Bar, a photocopy of the application on which the name of the accused was inscribed in long hand in the name citation with the originally typed name cancelled on the first page headed: 'Application for Constitutional Relief'.

The next page was the accused's affidavit and there was no alteration to the citation of the parties names.

The next document was the draft order and the typed name “Martin Dinha” in the heading was cancelled and the cancellation initiated or signed for. The accused's name was substituted in long hand where the typed name 'Martin Dinha' had been cancelled.

The court adjourned the case to 11:15am to allow time for State and defence counsels to discuss the application and agree a way forward.

The adjournment of 30 minutes would also afford the court time to read through the application and for Advocate Mpofu to avail himself.

The court also advised counsel that it did not want to let the case be bogged down in “unnecessary technicalities.”

Defence counsel was also ordered to prepare sufficient copies of the application for the court.

When the court resumed, Advocate Mpofu apologized for his delayed attendance and for not timeously placing his intended application before the court and served the State timeously.

He also apologised for the mix up in the name of the accused on the cover of the application.

He handed, over the Bar, a corrected copy of the application.

The substance and content of the application was the same as the one handed over by Mr Mukweva prior to the adjournment.

Advocate Mpofu further submitted, that, the State and defence counsels had liaised over the application and agreed that it be made the following day at 11:30am with the State counsels having undertaken to file their response by 10:00am.

I directed Advocate Mpofu to place on record what the gist of the application was because the court needed to appraise witnesses, and other interested parties, who sat in the court room, of the reason for postponing the matter.

To simply state, that, the case was being postponed for purposes of making an undisclosed application as to its nature or purport would not have been sufficient or proper.

Advocate Mpofu then submitted, that, he would be making an application supported by the accused's affidavit to declare the prosecution of the accused void on account of certain provisions of the Constitution and for alternative relief that the prosecution be stayed pending determination of the constitutional process underway whereby His Excellency, the President of Zimbabwe had invoked the provisions of section 187 of the Constitution.

Section 187 of the Constitution aforesaid deals with the removal from office of judges and applies to the Prosecutor General.

In response, Mr Chigwinyiso introduced a fourth member of his prosecuting team, a Mr Timothy Makoni.

He acknowledged, that, the defence had filed an amended application but submitted, that, what was before the court were just papers because he could not agree that the State had been served with the application until such time that a copy of the application had been served at the offices of the National Prosecuting Authority and its date stamp franked thereon.

He submitted, that, once this formality had been followed, the prosecution would then be able to respond accordingly - possibly by 10:00am.

I asked Mr Chigwinyiso whether, in essence, he was submitting that the State needed time to consider the application.

Mr Chigwinyiso submitted, that, even if the prosecution and the court were in possession of the application, there was still no application until the same had been franked by the National Prosecuting Authority at their offices.

Herein started the comedy of errors, the much ado about nothing or storm in a tea cup.

I ruled that the court did not see any logic in his reasoning and insistence that the application could only be treated as being properly before the court if it was served on the offices of the National Prosecuting Authority and its magic date-stamp franked on it.

I ruled, perhaps to the chagrin of the prosecuting team, that, it had been served with the application and was expected to respond to it and that it would assist the court if a written response was similarly filed.

The court was not referred to any Rule in criminal procedure which requires that a written application objecting to an indictment being tried can only be deemed proper if it has been served at the offices of the National Prosecuting Authority and its stamp franked on the copy served upon the Authority.

Applications to quash an indictment, as was sought in the main by the accused, are made before the accused pleads.

The law, and, in any event, logic and common sense dictates that the State is given reasonable notice of such application.

Sections 170, 171, 178 and 179 of the Criminal Procedure and Evidence Act are instructive.

It just defies logic for the State counsel to admit, that, he has been handed a copy of a filed application but will not recognize it as such until a copy thereof has been served at his Head Office.

Such attitude was farcical.

Notwithstanding the attitude of the prosecutors, I asked whether, in view of the nature of the application, they were content with being given until 10:00am to file a response or they needed more time.

Mr Chigwinyiso then suggested that the State be given until 2:15pm the following day to file its response.

I then agreed to grant the indulgence to 2:15pm.

I then asked the Prosecution team whether there were any witnesses to be warned.

Witnesses Messrs Mabahwama, Uladi, Dube, Sergeant Shumba, Mutsonziwa, and Hove were called into court.

I explained the deliberations which had gone on, the late filing of the defence application, the need for the State to respond in writing thereto, the nature of the application, and the agreement by the State and defence counsel to defer the hearing to the next day.

I confirmed with Mr Chigwinyiso that he could advise the witnesses to avail themselves at short notice.

It was agreed that the witness be discharged from attendance until called, after the determination of the application.

As regards the accused person, the record will indicate that I then said:

“Stand up P.G. I am postponing this case, by consent, to 2:15 tomorrow and you are ordered to appear at that time. Thank you all.”

In referring to the accused person as PG (Prosecutor General) I did not realize, nor anticipate, as I was later to discover, that, I had annoyed or irritated the Acting Prosecutor General to whom the reference was reported.

The developments which followed can only be described, as I have indicated, as a big fuss over a trifle.

The Acting Prosecutor General, perhaps determined to guard his territory of power, decided that the judge, myself, should recuse myself from the case.

It is very important to point out, that, recusals of a judicial officer are an everyday occurrence and occur as part of the judicial function.

But, how did the prosecution go about it?

Events of 14 February 2017

In the morning of 14 February 2017, my administrative head, the Judge President, called me to his chambers.

He handed me a copy of a letter addressed to him by the Acting Prosecutor General. It was copied to the Registrar and to the accused's legal practitioners.

The Judge President advised, that, he was passing on the letter to me because, as the presiding judge, I had to singularly decide on the issues raised and that his passing over the letter to me was all that he considered proper to do.

For the avoidance of doubt, the contents of the letter was as follows (and it is reproduced here because it was not a confidential communication as will be apparent):

“Monday, 13 February 2017

The accused was indicted for trial commencing on 13 February 2017. Prosecution counsel and the accused's instructing legal practitioners appeared in chambers before the learned Justice T H Chitapi, the judge assigned the matter, for a courtesy, and to inform him as to the readiness of the parties to proceed.

The learned judge was informed that the State was ready to proceed and had its witnesses present to testify but had not been furnished with the accused's Defence Outline despite the fact that the accused was indeed already for trial on 16 November 2016.

The accused's instructing legal practitioner informed the learned judge that no Defence Outline had been prepared but the defence intended to make an application and was awaiting the arrival of instructed counsel, Mr Thabani Mpofu.

The judge adjourned the matter to 11:15 hours.

Shortly before the matter was called in court, the defence produced a document which 'purported' to be an application.

'Purported' because the document does not in the least comply with the rules of court regarding form, substance, and manner of service of court applications.

Furthermore, the face of the so called 'Application for Constitutional Relief” shows that it was a page prepared for a certain Martin Dinha.

The said Dinha's particulars are scratched out in pen and substituted with Johannes Tomana.

Attached to it is an affidavit of the accused and a purported draft order also drawn presumably from an application filed in respect of the said Marin Dinha whose particulars are scratched out and the accused's particulars handwritten in.

After hearing submissions, the court ordered the State to file a written response to the application by 11:45 on 14 February 2017.

During the proceedings, captured on tape, the learned judge repeatedly referred to the accused as 'Prosecutor General.'

I am of opinion that the learned judge has improperly conducted himself and the proceedings.

First of all, Mr Tomana was suspended by H.E. The President of the Republic of Zimbabwe, Cde Robert Gabriel Mugabe on 7 July 2016. Simultaneously, the President appointed and swore in Advocate Ray H Goba as Acting Prosecutor General.

It follows that Mr Tomana, the accused, is not in office and accordingly not 'the Prosecutor General.' In other words, the office/position is occupied by Adv Ray H Goba.

Accordingly, any reference to the accused as Prosecutor General is grossly improper and fails to distinguish between the person and the Constitutional office.

The learned judge's conduct may reasonably be perceived as improper deference to the accused likely to taint his judgment in dealing with the matter.

It is common knowledge that the learned judge previously served on the Board of the National Prosecuting Authority under the chairmanship of the accused before his appointment to the bench.

This may help explain the learned judge's conduct during the hearing; the improper deference to the accused; and improper indulgencies granted to him.

For these reasons, I fear that the proper administration of justice is likely to be prejudiced if Justice Chitapi is to continue presiding over the matter. The public's perception of justice is likely to be diminished in regard this prosecution.

I accordingly, and with the greatest respect to the learned judge, submit that he is singularly unqualified to preside over this matter.

I would wish my concerns to be brought confidentially to his attention in order for him to apply his mind to the matter, to make an appropriate decision, and avoid a formal application in court.

The Honourable Judge President…,.

Advocate Ray H. Goba, Acting Prosecutor General.”...,.

The Acting Prosecutor General committed a cardinal error of requesting the Judge President to deal with the matter confidentially in bringing his concerns to my attention.

Whilst the Acting Prosecutor General may have been well-meaning, his suggestion would have set a very dangerous precedent.

The case had been called.

Orders had been made in court, including that the prosecution team files its response to the defence application by 2:15pm of the following day.

Justice dispensation should not be done behind closed doors.

To have expected the Judge President to have gone along with the Acting Prosecutor General's suggestion, to discuss issues of recusal in private, was clearly an offside move by the Acting Prosecutor General.

The Acting Prosecutor General is strongly warned to desist from such unprofessional and unethical conduct in future.

It was highly irregular of the Acting Prosecutor General to address the Judge President in the manner that he did, concerning the conduct of a judge sitting over a matter - without even having the courtesy to copy the letter to the judge concerned.

As a senior advocate, and Chief Law Officer of the State in criminal matters, he should have led by example.

The Acting Prosecutor General, and his team, should simply have invited the defence team to my chambers and discussed the prosecution concerns, as stated in the letter, if the aim was to avoid making a formal application for recusal in open court.

I earlier indicated that l would deal with how the letter found itself in the public domain.

The letter was copied to the Registrar of the High Court of Zimbabwe and to the defence counsel's law firm. The transcribed record will show, that, when the court hearing resumed, on 14 February 2017, the defence team raised the issue of the letter and its impropriety.

Advocate Mpofu submitted, that, a copy of the letter had been handed or served on the defence team by the prosecution team.

The defence took exception to the letter, which they considered as impugning the integrity of the judicial process, vexatious, and unethical.

Advocate Mpofu submitted, that, it was proper to prepare a citation directing the author of the letter to appear before the court and purge his contempt of the court process.

He also submitted, that, the Acting Prosecutor General, had, in the process of vilifying the judge, incited his subordinates, the prosecuting team, not to comply with the court directive to file a response to the application by the defense counsel.

He noted, that, the application only comprised two pages and there was nothing complicated about the application as would have made it impossible for the prosecution team to prepare a response as undertaken by it.

He attributed the default in filing the response to open and calculated defiance of the authority of the court on the part of the Acting Prosecutor General, who, instead of getting his team to respond to the application, decided to devote his energy and time to writing a scandalous letter.

The lead prosecutor, Mr Chigwinyiso, submitted, that, his team realized that it had allocated itself too little time to research and prepare a response. He submitted, that, his team had covered substantial ground and would require “a day or so” to make a full response.

He applied for the matter to be further postponed for a “day or two in order to file a response to the application made 'yesterday' and then to make a proper application as regards the issues raised by the Acting Prosecutor General.”

The lead prosecutor submitted, that, the State response would be ready and filed by 17 February 2017.

With respect to the letter by the Acting Prosecutor General, the prosecution team could not speak to it or motivate it.

To its credit, the prosecution team, through the lead prosecutor, submitted, that, upon reflection, their boss had misfired by writing a letter to the Judge President concerning a matter before the court, and, moreso, without copying the letter to the presiding judge.

In a lighter moment, I requested the lead prosecutor to look at the dock and tell the court how he would address the accused person.

He gave a witty response. He said:

“I will answer the question from my Lord from a person who is dealing with soccer.

A player who has been red carded still remains a football player. The Prosecutor General is still Prosecutor-General whether suspended or not until he is removed from office.”

He agreed that Advocate Ray Goba was Acting Prosecutor General, discharging the duties of the Prosecutor General, and that the Prosecutor-General was the accused person before the court who however was on suspension.

Mr Chigwinyiso then submitted further, that, the Acting Prosecutor General, as the author of the letter, was best placed to motivate it.

The court then postponed the matter, at the instance of the prosecution team, to the next day, 15 February 2017.

The prosecuting team undertook that it would have filed a formal application for my recusal by 11:15am and the Acting Prosecutor General would appear with the team at 2:15pm whereat he would motivate or explain his letter and deal with the application for my recusal.

I indicated to the prosecution team, that, if it faced time constraints, the application could still be made orally because there was no Rule which prescribed that an application for recusal of the judge be reduced to writing.

Advocate Mpofu submitted, that, the defence wanted the Acting Prosecuting General to be available.

The court did not consider it necessary to prepare a subpoena or citation for the Acting Prosecutor General to appear before the court.

The court considered, that, the Acting Prosecutor General was an officer of the court and a legal practitioner duly sworn, admitted, and registered as such by the High Court: thus, when required by the court to attend, in relation to a matter which he has brought before court, the Acting Prosecutor General, in deference to the court, and the duties of his office, did not require to be compelled by subpoena to appear before the court at its request or direction.

Mr Chingwinyiso undertook to advise the Acting Prosecutor General to appear before the Court on the following day.

The matter was rolled over to the following day, 16 February 2017.

On 16 February 2017, the prosecuting team appeared in court - without the Acting Prosecutor General.

No application was made for him to be excused from attendance nor to explain why he was not in attendance.

The lead prosecutor submitted, that, he relayed the message to the Acting Prosecutor General, that he was required at court to explain the contents of his letter. The Acting Prosecutor General reportedly instructed his prosecuting team to tell the court that his explanation was contained in his affidavit supporting the written application for recusal.

Mr Chingwinyiso further indicated, that, he had spoken to the Acting Prosecutor-General in the morning and he had indicated that he was going to attend.

As it was now 2:53pm, the lead prosecutor indicated that he did not know whether the Acting Prosecutor General would pitch up or not.

Mr Mpofu submitted, that, the Acting Prosecutor General's conduct showed that he had no respect for the court because he deliberately refrained from presenting himself before the court despite the court's directive....,.

He submitted, that, it was only fair that the Acting Prosecutor General be given ten (10) minutes to present himself before the court, failing which the court should issue a citation for him to attend and explain his conduct.

The court, however, ruled that since the Acting Prosecutor General had been given an opportunity to appear before the court and explain his letter, and motivate the recusal, but deliberately spurned the opportunity, he only had himself to blame if an adverse order or finding was made against him.

There can be no doubt, that, the Acting Prosecutor General displayed a recalcitrant attitude reminiscent of a stubborn unwillingness to defer to the court's authority.

The court pointed out to the prosecuting team, that, it was the first time in its experience that the Government Chief Prosecutor, and legal practitioner, exhibited such a belligerent and hostile attitude towards the authority of the court.

The Acting Prosecutor General discharges the duties of the Prosecutor General. The office of Prosecutor General is a Constitutional appointment. Courts are also created by the Constitution.

This court, in particular, is a superior court with inherent and unlimited jurisdiction over all matters, civil or criminal save as excepted by the Constitution.

By adopting a hostile and stubborn attitude towards the authority of this court and/or a judge of this court, in the discharge of his Constitutional functions as such, the Acting Prosecutor General's conduct has the potential to create a Constitutional crisis where one Constitutional body undermines the authority of the other.

The rule of law can only be threatened by such conduct.

The conduct exhibited by the Acting Prosecutor General, of creating a stand-off between the office of the Prosecutor-General and this court, as happened in this case, where he refused to attend when called by the court, must be deprecated and censured.

The Prosecutor General, admittedly, and in terms of section 260 of the Constitution, is independent and not subject to the direction or control of anyone.

He should not, however, get carried away, because, the independence of that office is subject to the Constitution.

Since this court has original and inherent jurisdiction, which extends to all persons and matters, the Prosecutor General, unlike the President, who enjoys immunity whilst in office, in terms of section 98 of the Constitution, must and is expected to defer to the authority of the court and is not above the law.

Whilst the criticism of the Acting Prosecutor General's conduct may appear to be hard-hitting; he only has himself to blame, because, he was given the opportunity to present himself before the court and explain his conduct, in writing a letter behind a judge's back in an apparent attack on the judge and the court's integrity, and he deliberately refrained from doing so.

Legal practitioners, like the Acting Prosecutor-General, are senior officials of this court and should lead by example.

Anything short of impeccable conduct on the part of the Acting Prosecutor General, the Prosecutor General, and members of the National Prosecuting Authority, as with any other legal practitioner of this court, is a recipe for the breakdown of the due dispensation of justice and rule of law....,.

The public must never entertain a wrong belief that judges can be interfered with in their judicial functions by their bosses or other juristic persons like the National Prosecuting Authority.

The independence of a judge is intrinsically connected with the rule of law.

Litigants, including the Acting Prosecutor General, must play the game by the rules and be an example to the public that judicial independence must not be interfered with.

Section 164(2)(a) of the Constitution is very clear, that, no person, including the State or any of its institutions, should interfere with court functions.

Where a litigant has an issue to raise, concerning a matter before the court, such litigant should raise the issue openly and not nicodemously.

The public perception of behind the scenes correspondences between a litigant and judges is susceptible to so many wrong conclusions and erodes the confidence which the public reposes in the courts....,.

A judicial officer, and, in the present case, the judge, is sworn to protect and uphold the Constitution. The judge is sworn to administer justice to all persons alike without fear, favour, or prejudice in accordance with the Constitution and the law....,.

The status of the person appearing before the judge is immaterial. This is entrenched in section 165(1)(a) of the Constitution.

Therefore, in this case, the fact that the person on trial is the Prosecutor General of Zimbabwe is immaterial because of the doctrine of equality of all in the eyes of the law.

A judge is required to act impartially but is not expected to be neutral.

The two concepts, of neutrality and impartiality, are not the same.

It is not possible to have a neutral judge who has no ideas, sympathies, or opinions.

Since a judicial officer is a product of his or her own life experiences, it is a myth to expect that he or she would not have opinions and sympathies.

Impartiality, however, connotes a state of mind whereby the judge has no interest in the outcome of a case but is open to be persuaded by evidence and submissions made.

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

The applicant approached this court seeking rescission of default judgment entered against him in Case No. HC9544/15 on 8 March 2016.

The background to the matter is that the applicant, as plaintiff, sued the respondent, then the defendant, in the Magistrates Court. The particulars of claim were not clear and concise but they referred to some breach of contract by the respondent; a delictual claim based on the mental suffering that the applicant suffered as a result of the breach of contract.

The magistrate granted absolution from the instance at the close of the applicant, then the plaintiff's case.

The applicant appealed against the decision, in CIV “A” 457/14.

On the day of the hearing, the appeal was dismissed because the applicant defaulted by not appearing.

The applicant, in Case No. HC9542/15, applied for rescission of the default judgment.

Again, at the hearing of Case No. HC9542/15 the applicant was in default and the case was dismissed.

The applicant now seeks rescission of the judgment in terms of Rule 63 of the High Court Rules 1971 (Rules).

In terms of Rule 63, the court may set aside a judgment if there is good and sufficient cause to do so.

Good and sufficient cause has been defined, in a number of jurisdictions, as:

(i) A reasonable explanation for the default;

(ii) Where there is a bona fide defence to the main claim; and

(iii) Where the application for rescission is itself bona fide.

See Chivhayi Enterprises (Pvt) Ltd v Attish Investments (Pvt) Ltd 2007 (2) 89 (S).

The applicant avers, that, the matter was set down in Court “M”. On the day of hearing, the matters were moved to Court “O”. By the time he realized that the matters had been moved, and by the time he managed to get to Court “O” his matter had been dismissed.

The explanation given by the applicant has not been controverted. It sounds probable. I will take that that is what transpired. The detail that he gives regarding the notice that was affixed at the courtroom door has some ring of truth.

The next issue is whether the applicant has a bona fide claim in HC9542/15.

He is seeking rescission of the judgment through which his appeal was dismissed.

The proper procedure would have been for the applicant to apply for reinstatement of the appeal. The applicant has adopted the wrong procedure.

His application, thus, has no prospects of success and it is likely to be dismissed.

In the result, the applicant has not satisfied the requirement that he show good and sufficient cause to have the default judgment rescinded.

Before concluding the matter, I feel compelled to comment on the applicant's papers.

From the analysis I did above, one can tell, that, it is a very simple matter; but, I had to plough through a 100 paged record with endless repetitions and unnecessary material to come up with the judgement.

The bulk of what is contained in the record is irrelevant and incomprehensible.

Pleadings should be concise and clear.

In Meikles Limited Zimbabwe v Stock Exchange HH66-16, in dealing with pleadings which were not concise, I quoted with approval Fungai Nhau v Memory Kipe & Anor HH73-15 where he had this to say:

“By definition, pleadings must be concise and to the point. They must identify the branch of the law under which the claim or defence to it is made and should not contain evidence. Pleadings which are long winding and argumentative should not find their way to these courts. It is a serious dereliction of duty for legal practitioners to continue presenting such offensive pleadings when they have the aid of literature guiding the drafting of pleadings.

I associate myself fully with the sentiments of MAKARAU JP…, in Chifamba v Mutasa & Ors HH16-08 that:

'Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings; in any matter is that what they plead is what the law requires their clients to prove to sustain the remedy they seek…,. Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.'”

Although the above matters involved legal practitioners, the same can be said of self-actors.

The question, then, is, whether the court, and other litigants, should be subjected to the agony of reading through such process and be expected to come up with a sound judgment or a meaningful response to such processes.

The authors, HERBSTEIN and Van WINSEN. The Civil Practice of the High Courts in South Africa, 5ed…, state the following:

“The High Court possess an inherent jurisdiction to prevent vexatious litigation as being an abuse of its own process.”

They go on to explain, that, such power is one which must be exercised with very great caution and only in a clear case, as the courts of law are open to all.

In De Wet and Ors v Western Bank Ltd 1977 (4) SA 770 T…, the court held:

“A court obviously has inherent power to control the procedure and proceedings in its court. This is to facilitate the work of the courts and enable litigants to resolve their differences in a speedy and inexpensive manner as possible…,.”

The proceedings in this matter can safely be described as vexatious.

The court must be able to protect and control the procedure and its proceedings to avoid abuse by litigants.

It is my view, that, this is the sort of case where a litigant will, in future, be required to seek leave before filing and serving other litigants with his or her process. This would be in a bid to prevent abuse of its own process and to protect other litigants from being harassed and being put out of pocket by vexatious litigants.

It is fortuitous that the respondent, in this matter, did not oppose the application.

In the result, I will make the following order:

1. The application is dismissed.

2. The applicant is required to seek leave of this court before he can issue any process out of this court.

3. No order as to costs.

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

The applicant and his son, Ian Masamba, in HC0051/15 sued the respondent claiming damages for what they termed “professional negligence for mental suffering” in the sum of USD1,200,000.

The applicant further claimed payment of USD1,400,000 for what he termed “defamation libel.”

The respondent excepted to the summons as well as filed a Special Plea.

The matter was determined by MUNANGATI-MANONGWA J who made the following order:

“1. The special pleas raised by the defendant be and is hereby upheld.

2. The first and second plaintiffs claims against the defendant be and are hereby dismissed.

3. The first and second plaintiffs to pay defendant's costs on an attorney–client scale jointly and severally, the one paying the other to be absolved.”

The applicant now approaches this court seeking an order in the following terms:

“1. The order in case no: HC6051/15 be and is hereby set aside/rescinded against both plaintiffs.

2. Ian Farai Masamba be reinstated as the (1st) first plaintiff in case no: HC6051/15 in which he will invest me with a power of attorney in compliancy with High Court Rules book: Rule 5(4) with the caveat that the rules book itself does not reflect rule 5(4) only Form 1 is reflected and indicates as being originated by Rule 5(4).

3. An Independent Committee of Enquiry be hereby instituted within 3 months from the date of the issuing of this order respondent's ZIMSEC to hold an inquiry into this matter and related matters on the basis of cited record numbers found in this record and the others as the records are perused new records for perusal are found up until they are finished at the magistrate's court and high court report its findings including the performance of the magistrates and judges in the matters in terms of competence and bias and report whether or not the president of the country's hands are clean as well as whether or not his father was Malawian sourcing information from him and from wherever else possible so as to immortalize the correct official history as need to verify has arisen because there is the possibility that history could be falsified and enquiry about the beaming.”

The applicant's affidavit is 33 pages.

I have waded through the prolix affidavit and the draft order and have failed to decipher what exactly the applicant seeks from the court.

The record of the matter itself is 268 pages.

Most of the material is irrelevant to the issue at hand.

There is mention somewhere in the founding affidavit that he seeks the setting aside of the judgement in terms of Order 49 Rule 449(1)(b).

Rule 449(1)(b) provides:

“The court or a judge, in addition to any other power it or he may have mero motu or upon the application of any party affected, correct, rescind, vary any judgement or order -

(a)…,.

(b) In which there is an ambiguity or patent error or omission, but, only to the extent of such ambiguity, error or omission; or

(c)…,.”

The applicant summarises his complaint against the judgement in paragraph 56 of his affidavit where he states the following:

“On the premise that the hon justice Munangati-Manongwa's ruling ignored a filed and served Notice of Intention to Bar and ignored the effect of the Bar and on the premise that she addressed her dismissal ruling against the 2nd plaintiff basing it on a retrieved or entirely deleted Plaintiff's Declaration than base it on the filed and served Amended Plaintiff's Declaration and Notice of Amendment and on the premise that the ruling ignored that the Respondent did not oppose Amendments which are allowed by Order 20 Rule 132 thus the Order granted in case no. HC6051/15 arguably was not incorrectly or arguably was improperly, or irregularly or fraudulently or deceitfully granted.”

What I can pick from the above is that:

(i) The Judge ignored the fact that the defendants were barred.

(ii) She relied, in her ruling, on the plaintiff's declaration and yet they had filed a Notice of Amendment and the amended plaintiff's declaration which was not opposed by the respondent.

The issue regarding the bar of the respondent was not raised before MUNANGATI-MANONGWA J.

The applicant should have raised it as a point in limine before the Court. The Court could not, therefore, grant what had not been prayed for.

As regards the amendments, the court actually commented on them on p6 of the cyclostyled judgement when the Judge said:

“This claim borders on abuse of legal process as the second Plaintiff, on his behalf, and on that of the first Plaintiff, unprocedurally filed numerous voluminous documents at will including amendments to other amendments…,.”

The court did not, therefore, ignore the issue of the amendments. It had regard to them and made a finding on them.

The applicant has therefore not made out a case for the setting aside of the judgement in HC6051 in terms of Rule 449(1)(b).

The relief that he seeks in paragraph 2 and 3 is incomprehensible and meaningless and the court cannot be of assistance to him.

I made the following observations, after examining the law regarding vexatious proceedings, in another matter involving the same applicant, Ignatius Masamba v ZETDC HH699-16, that:

“The proceedings in this matter can safely be described as vexatious. The court must be able to protect and control the procedure and its proceedings to avoid abuse by litigants. It is my view, that, this sort of case where a litigant will in future be required to seek leave before filing and serving other litigants with his or her process. This would be in a bid to prevent abuse of its process and to other litigants from being harassed and being put out of pocket by vexatious litigants.”

The same can be said of the present matter.

In view of the above, I will make the following order:

1. The application is dismissed.

2. The applicant is required to seek leave of this court before he can issue any process out of this court.

3. There will be no order as to costs.

HH330-16 : CITY OF HARARE vs TENDAI MASAMBA
Ruled By: MAFUSIRE J

In this matter, the citation of the respondent as “Tendai Susan Masamba” [“Ms Masamba”] was a misnomer.

Her surrogate, one Ignatius Masamba [“Masamba”] was the litigant the applicant [“the City of Harare”] was after.

That was borne out by the body of the application. Tendai Susan Masamba had nothing to do with the abuse the applicant complained of. In fact, the original index to the original court application cited Ignatius Masamba as the respondent.

That is why when counsel for the City of Harare moved for an amendment, I had no hesitation granting it.

The application was one for a decree of perpetual silence. It had to come.

Ignatius Masamba has been extremely litigious. He has abused some dubious general power of attorney granted to him in 2011 by Tendai Susan Masamba. He has launched suit after suit in respect of some apartment in Harare, namely, 4 Residell Court, 56 Selous Avenue [“the flat”]. In some cases, he would cite Tendai Susan Masamba as the applicant or plaintiff; invariably describing her as “…, my sibling kid sister…, who is domiciled overseas.”

It has not mattered to him that this court, in Tendai S Masamba v Zimbabwe Electricity Transmission and Distribution Company [Pvt] Ltd HH411-15 [“ZETD”], has ruled, that, that power of attorney did not authorise him to institute and prosecute litigation.

In other cases, Ignatius Masamba has just gone it alone; instituting and prosecuting litigation in his own name without restraint.

Of the flat, he invariably says in his bombastic affidavits: “Flat 4, Residell Court, 56 Selous Avenue…, is a usufruct [sic] to me. The rental income is mine…,.”

At the last count, there had been 26 cases instituted in this court by, or in respect of, or against Ignatius Masamba. Of that number, over 92% were to do with the flat. The schedule below refers to those cases. That is what I managed to dig up from the system.

Case No.: Name of the Parties: Nature of the Claim

1 HC 6553/11 ZETD v Tendai Masamba Re: Outstanding power bill

2 HC 7144/11 Ignatius Masamba v City of Harare Re-connection of water supply

3 HC 3975/12 Tendai S. Masamba v ? Damages against Associat'n

4 HC 6202/12 Ignatius Masamba v City of Harare Interdict & other multiple remedies

5 HC 11009/12 Ignatius Masamba v City of Harare For re-connection of water supply

6 HC 11447/12 Ignatius Masamba v Guest & Tanner Re: Damages for breach

7 HC 14500/12 Ignatius Masamba v Contact Real Est Re: Damages for breach

8 HC 34448/12 Tendai S. Masamba v ZETD Leave to appeal

9 HC 20/13 Tendai S. Masamba v A Chigwanda Re: Damages against Associat'n

10 HC 3721/13 Tendai S. Masamba v Obgla Sales Re: Damages against Associat'n

11 HC 6235/13 Tendai S. Masamba v City of Harare Rescission of judgment

12 HC 9022/14 Ignatius Masamba v Robert Root Re: Damages for breach

13 HC 9428/14 City of Harare v Tendai S. Masamba Decree of perpetual silence

14 HC 965/15 Ian F. Masamba & Anor v ZIMSEC Re: Exam results

15 HC 6051/15 Ian F. Masamba & Anor v ZIMSEC Re: Exam results

16 HC 2368/15 Ignatius Masamba v Secretary-JSC Re: Damages for incompetence

17 HC 7286/15 Ignatius Masamba v Guest & Tanner Re: Damages for breach

18 HC 9373/15 Ignatius Masamba v Concept Real EstRe: Damages for breach

19 HC 9398/15 Ignatius Masamba v Secretary-JSC Re: Damages for incompetence

20 HC 9542/15 Ignatius Masamba v ZETD Rescission of judgment

21 HC 9824/15 Ignatius Masamba v Concept Real EstRe: Damages for breach

22 HC 9825/15 Ignatius Masamba v Secretary-JSC Re: Damages for incompetence

23 HC 10937/15 Ignatius Masamba v Secretary-JSC Application for recusal

24 HC 2822/16 Ignatius Masamba v ZETD Rescission of judgment

25 HC 2826/16 Ignatius Masamba v ZIMSEC Rescission of judgment

26 HC 2402/16 Tendai S Masamba v ZETD Rescission of judgment

Ignatius Masamba's behaviour has been truly weird.

He has clogged the system with groundless litigation. Some of the cases have been instituted in the Magistrates Court and have ended up in this court on appeal. Others have found their way to the Supreme Court.

There are many disturbing features about Ignatius Masamba's suits.

He pursues essentially the same remedy in several cases. It seems it all started with some water bill raised by the City of Harare in respect of the entire apartment block. Among other things, Ignatius Masamba felt the bill was inflated. The situation was compounded by the City of Harare going on to disconnect the water supply.

Since then, no one has rested. It has been a charade.

In almost all the matters concerning him, Ignatius Masamba has literally defaced the records. He would file endless volumes of incomprehensible verbiage. He would follow up with even more of it, purporting to amend or replace or withdraw or clarify previously filed verbiage. In the present matter, he has literally turned the record upside down by, among other things, filing and binding his own court application next to the original one. He has filed numerous other incomprehensible documents.

Said by counsel for the applicant, in his Heads of Argument, quite aptly:

“[Ignatius Masamba] also does not know when to stop. Once he institutes a suit, papers keep falling like confetti at a wedding.”

Almost all of Ignatius Masamba's documents are annotated in ink. Some have been crossed out. Others have completely been defaced. The whole record has been disfigured.

That is the state of most of the other records.

In this particular matter, Ignatius Masamba purported to bar the applicant. He proceeded to set the matter down on the unopposed motion roll - three times in succession. The first time the matter was postponed. The second time, I happened to be presiding. I struck it off the roll. He re-enrolled it for the third time. The presiding judge struck it off the roll again.

Eventually, the matter was properly set down by the City of Harare.

Apart from this matter, and the several others by him against the applicant, Ignatius Masamba has also sued several other persons or bodies, including estate agents.

The suits against the estate agents have all been about alleged mismanagement of the flat.

There is a Residents Association at the apartment block. It too has been hit by several suits for one fault or another.

Tendai S Masamba v Zimbabwe Electricity Transmission and Distribution Company [Pvt] Ltd HH411-15 was for damages for alleged inflated power bills to the flat.

Ignatius Masamba has also sued the Judicial Service Commission [“the JSC”]. It has been accused of employing incompetent magistrates. One of them had dismissed one of his claims against the City of Harare in respect of the flat. To Ignatius Masamba, that was an unforgivable sin. The magistrate was condemned for having failed to grasp the nature of the claim.

Other cases that have come before this court, either on first instance or on appeal, have almost always been dismissed for lack of substance or coherence.

Ignatius Masamba would react by filing further documents. However, these would all be scurrilous gibberish. In some cases, he would react by applying for rescission of judgments, despite that in none of them would the judgments have been given in default.

Ignatius Masamba has also blasted the Judicial Service Commission (JSC) for employing incompetent judges that pander to the whims of political parties. In most of his affidavits or heads of arguments or letters or other writings, he has portrayed himself as a shrewd politician who is on course to land the post of presidency for Zimbabwe.

Ignatius Masamba's other reaction to unfavourable outcomes in his cases has been to write scurrilous letters of complaint to individual judges, copying them to all manner of administrative authority, like the Judge President, the Chief Justice, and the Secretary for the Judicial Service Commission (JSC). In most such letters, he has sought the recusal of all such judges as would have dismissed his cases. I have counted up to 12. That is roughly 85% of the compliment of all the judges at the Harare station.

Sometimes judges have advised Ignatius Masamba to seek legal assistance in formulating and prosecuting his claims.

However, such advice has been snubbed with disdain.

He has argued that he is a professional in his own right, having acquired some CIMA [Chartered Institute of Management Accountants] qualification, which he says had law as a component.

At one time, he was granted in forma pauperis assistance.

But, he soon came back to file further intemperate documents against some relatively senior legal practitioner. He has also blasted the Legal Aid Directorate for a multitude of sins.

In Ignatius Masamba v Secretary, Judicial Service Commission HH978-15…, MUNANGATI- MANONGWA J said of Ignatius Masamba:

“Finally, whilst it is a constitutional right to be able to approach the courts to obtain relief, self-actors must know that the practice of law is a very specialised area which requires deep knowledge and skill. Simply reading law books at random does not equip one with the requisite knowledge. Legal assistance should be sought if one is to comply with the rules and file appropriate papers. The plaintiff in this matter fell into a pit by his mere belief, that, he can handle his claim without legal assistance. As a result, the defendant has had to be put to expense in defending fatally defective proceedings where the plaintiff filed numerous documents without restrain[t] some being withdrawn. This is a case which warrants that an order of costs on a legal practitioner [and client] scale be granted to discourage such conduct which is unnecessary and costly.”

Ignatius Masamba's reaction was swift and belligerent.

Giving notice to file an application for review, he launched a blistering diatribe against the learned Judge, stating in part:

“5. The hon justice Munangati arguably is a biased judge and is extremely provocative of her and she must be stopped in her tracks. My pillar documents disclose a cause of action. And I am very angry.

6. Her judgment must have been based on the pillar or milestone documents ie the Summons, Notice of Amendment, Amended Plaintiff's Declaration, Response to Request for Further Particulars and my Heads of Argument related to the Defendant's Exception vis a vis what the Defendant filed, not partly due to peripheral filings in the form of letters written by me after judgment had been reserved. The filings about which she used the phrase 'without restraint'. Which court rule is she relying on?

7. This is why it feels the Judicial Service Commission seems poorly led because we cannot have such an arguable prevalence of what looks unmitigated corruption, incompetence, and political interference.”

In one typical letter seeking a judge's recusal, Ignatius Masamba wrote:

“3. The inference is that justice Muremba possibly is politically motivated as a probable political hack judge in a probable facelessly operating malevolent confederacy attributable possibly either to ZANUPF or possibly the MDC T if possibly not both by dint of a probable or arguable whipsaw, or possibly she is corrupt, or still possibly she is incompetent or acted validly if there is justification extended in confutation by her.

4….,.

5….,.

6. There is a spinster, Mercy, her phone is…,; who I have spoken and texted to from the numbers given below who I thought I would marry, but it seems the possibility or proper communication is being blocked possibly politically possibly by dint of a whipsaw unless I am misconceived about the true position.

7. There was an incident that happened when I was with her where she is self-employed that seems to confirm the blocking scam. She is not the only one. There are many other spinsters before her which affairs between them and me were blocked who could specify by name just like the many court cases which it seems judges have temporarily blocked.”

Ignatius Masamba has exhibited extreme abnormalities of behaviour.

For example, in one suit, he features with his son, both suing the Zimbabwe Schools Examination Council [“ZIMSEC”]: see Ian Farai Masamba & Anor v Director, ZIMSEC HH969-15.

But, it was all his doing. The son was just a convenient front. He never came to court.

The claim was plainly weird. It was for a staggering US$1.4 million allegedly as damages for the poor results obtained by the son in the Ordinary and Advanced Levels.

The claim was couched as follows:

“Professional negligence for mental suffering US$1,200,000 payable half and half to the first and second plaintiff's and defamation-libel payable to the first plaintiff US$200,000 all in all being US$1,400,000.”

The cause of action, in respect of the son, the first plaintiff, was pleaded as follows:

“(i) Breach of contract because the first plaintiff paid exam fees for a fit and proper result; and

(ii) The omission or failure to issue fit and proper [or competent] results; and

(iii) The unfair and provocative discriminating results in November 2006 and November 2008 diets which resulted in damage of mental suffering directly as a result of the defendant's carelessness.”

For himself, as the second plaintiff, the cause of action was pleaded as follows:

“The second plaintiff is suing for the carelessness and deliberate act by the defendant of having to watch ghastly and inexplicable subtle torture of his son as well as being his home-based tutor being denied his exam results in the specified years in what looked unprincipled political corruption which basically resulted in financial sabotaging circumstances and a forced wastage of money. The second plaintiff was also greatly physically inconvenienced.”

In upholding the exception taken by the defendant against such meaningless verbiage, MUNANGATI-MANONGWA J lamented as follows…,.:

“In as much as individuals have constitutional rights to bring whatever claims they have to the courts for adjudication, it is necessary to ensure that processes comply with the rules of court and that they are fully and legally informed regarding the decisions to take legal action. This claim borders on abuse of legal process as the second plaintiff, on his behalf and that of the first plaintiff, unprocedurally filed numerous voluminous documents at will including amendments to other amendments, and wrote several letters to the Registrar which documents had to be read by defendant and the court. Some of the documents did not even make legal sense, a typical example being a notice of withdrawal filed…, well after this matter had been argued and judgment was being prepared, which notice reads as follows:

'Take notice that 2nd Plaintiff is giving notice to withdraw this matter because the 1st Plaintiff was in default of plea. With no order as to costs as 2nd Plaintiff believes the defendant had been barred.'”

There is little distinction between Ignatius Masamba's writings and his oral submissions. They are both foul.

By his own admission, he suffers from an undisclosed mental ailment.

A common feature, in his myriad of cases, includes a claim for damages for mental suffering.

In one of the letters for recusal, he has complained of hearing the amplified voice of his former girlfriend. He wrote:

“9. When I stop visiting I begin hearing an amplified voice similar to hers almost incessantly lamenting saying: 'So I have been rejected. I did not know it will make him unhappy. If he comes I shall not do it again.'

10. But when I go the treatment never changes as if she probably is being manipulative or trying to free herself and me according to what she may know. And so on and on, so much so that, for me the side effects have become an incubus that must be rid of because and if the voice is hers it seems she is being politically intimidated and the amplified voice I hear from afar seems as if to confirm that she is being intimidated.”

Courts of justice are open to all. Section 69[3] of the Constitution says that every person has the right of access to the courts, or to some other tribunal or forum established by law, for the resolution of any dispute.

But, this right is not absolute.

In exceptional cases, the courts will draw the line. They will shut their doors. They have an inherent right and power to prevent an abuse of their processes. They have inherent powers to protect their integrity.

Frivolous, vexatious, or burdensome litigation; incessant lawsuits that churn out pesky bills of costs which remain unpaid; dirty hands; abuse of judicial officers in any manner; contempt of court; non-disclosure of material facts, and so on, are some of the intolerable infractions that may lead the courts to shut their doors.

The closure may be temporary. But it can be perpetual. It all depends on the circumstances.

The doors may not be re-opened without leave.

INNES CJ put it this way in Corderoy v Union Government [Minister of Finance] 1918 AD…,.:

“Where there has been repeated and persistent litigation between the same parties, on the same cause of action, and in respect of the same subject matter, a defendant should not be driven to file repeated pleas of res judicata, or to make a succession of applications to stay proceedings where prior costs have not been paid.

I think he is entitled to more effectual protection against long-continued unsuccessful onslaughts in respect of the same dispute. Such protection could only take the form of a general order curtailing, in some respects, the plaintiff's ordinary rights of litigation in that matter.”…,.

See also Western Assurance Co. v Caldwell's Trustee 1918 AD 262…,.; Mhini v Mapedzamombe 1999 [1] ZLR 561 [H]; and Nehanda Housing Co-operative Society & Ors v Simba Moyo & Ors HH987-15…,.

In Mhini v Mapedzamombe 1999 [1] ZLR 561 [H] the applicant was bombarded with incessant litigation in respect of the same issue which related to the setting aside of a certain sale in execution. The court issued an interdict barring the respondent from instituting any further proceedings in this court relating to that issue.

Describing the conduct of the respondent, GARWE J…, said…,.:

“The sale was subsequently confirmed…,. Since then, there has been a multiplicity of proceedings in which the respondent has, in the main, attempted to have the sale in execution set aside. These attempts have failed. The respondent appealed to the Supreme Court against an order of this court dismissing the claim. The appeal was dismissed with costs.

Since the dismissal of the appeal, the respondent has instituted various proceedings in which he has cited the applicant and others as the respondents. Some of the proceedings have not been pursued, and, in some instances, the same relief has been claimed in different cases.”…,.

In this matter, and the others involving Ignatius Masamba, the situation has been worse.

It is an exceptional and drastic course of action to withdraw a litigant's constitutional right of access to the courts. But, it is one the courts will not shirk from where there has been persistent abuse.

Ignatius Masamba's suits have been flagrantly abusive, in both the literal and legal sense.

Evidently, the sort of help Ignatius Masamba really needs cannot be found within the corridors of the halls of justice. He operates at a completely different plane. His actions are harmful, not only to the applicant and the several other litigants that have appeared on his opposite side, but also to the courts and their officers. He has clogged the system with a litany of irrational verbiage.

He has to be stopped.

In the premises, I issue the following order:

1. A decree of perpetual silence is hereby issued against Ignatius Masamba in respect of his agency, management, occupation, or interest of whatever kind in the property known as No. 4 Residell Court, 56 Selous Avenue, Harare, more particularly that:

1.1 Ignatius Masamba, either personally, or through, or on behalf of any other person, is hereby interdicted and restrained from instituting or prosecuting in this court, any action, application, suit or proceedings of whatever nature in connection with whatever interest he may have in the property aforesaid without the leave of this court first being applied for and obtained, and in which application he shall demonstrate sufficient mental capacity to do so;

1.2 The Registrar of this court shall not issue out any process commencing action, or set down any matter already filed or commenced by, for, on behalf of, or at the behest of, Ignatius Masamba in connection with that property, without the leave of this court first being applied for and obtained;

1.3 Any application for the leave of this court, as directed above, shall be made on notice to all interested persons.

2. The costs of this application shall be paid by Ignatius Masamba on a legal practitioner and client scale.

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD
Ruled By: MANGOTA J

The applicants applied for a decree of perpetual silence against the respondents.

They submitted, that, these constituted a nuisance to them. The respondents, they said, took them to the Magistrates courts, this court, and the Supreme Court with no end in sight. They stated, that, the respondents took them to court on not less than forty (40) occasions. They averred, that, they have been subjected to a series of abusive criminal and civil proceedings. They said, despite repeated dismissal of their claims by the courts, the respondents maintained the position, that, the judgments which were entered against them were ineffectual. They complained that the respondents were harassing and vexing them. They insisted that the court should protect them as well as itself from the abusive conduct of the respondents. They moved the court to grant them the decree.

The respondents opposed the application.

They moved the court to examine the cases which formed the basis of the application in relation to their cause.

They denied that they were always in the driving seat when the cases which the applicants made reference to found their way to the court(s). They stated, that, the applicants filed some of the cases with the court(s). They said all the cases upon which the current application rests had a bearing on a mine tribute agreement which the fourth applicant (John Richard Needham Groves) concluded with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd). The fourth applicant, they said, concluded the tribute agreement with them through his Chiroswa Minerals (Pvt) Ltd [“the company”].

They submitted, that, they should not be silenced for their effort to assert their right in the tribute agreement. They moved the court to dismiss the application with costs.

At the centre of the parties dispute is Dodge Mine [“the mine”]. It lies in Shamva District under Mashonaland Central Province. It has six claims. These are lucrative, according to the evidence filed of record.

The fourth applicant and his partner used to own and work the mine. They worked it under the name Chiroswa Syndicate. The fourth applicant later sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). This was after his partner had left the syndicate. The first applicant is currently the owner of the mine.

The issue of the mine has seen the parties take each other to court on thirty (30), and not forty (40) occasions.

The applicants filed actions and/or applications against the respondents on nine (9) occasions. The respondents filed actions and/or applications on sixteen (16) occasions. The following five (5) cases were not accounted for: HC233/13, HC5669/13, HC5460/13, HC6842/14 and HC308/12.

The court could not tell which party filed what action or application in respect of the mentioned five (5) cases. What it could tell, however, was that the parties have been in and out of courts on thirty (30) occasions.

The relief which the applicants moved the court to grant to them is not new to the jurisdiction of this court.

In Mhini v Mupedzamombe 1999 (1) ZLR 561…, GARWE J…, had the occasion to deal with an issue which was similar to the present one. The learned judge quoted with approval what CURLEWIS J said in Brown v Simon 1905 TS 311…, wherein he remarked that the procedure:

“…, affords a useful means of bringing to a conclusion all threatened actions, and, in our opinion, it is applicable under due safeguards not only to cases where a claim has been made or an action threatened publicly, but, to every case where by demand or threatened action there has been a disturbance of, or interference with, the quiet enjoyment of another's rights.”…,.

In Corderoy v Union Government [Minister of Finance] 1918 AD 512, which GARWE J was pleased to make reference to in Mhini v Mupedzamombe 1999 (1) ZLR 561, the South African Appellate Division held, that, when there has been repeated and persistent litigation between the same parties, in the same cause of action, and in respect of the same subject–matter, the court can make a general order prohibiting the institution of such litigation without the leave of the court, but, that power extended only to prevent abuse of its own process without being concerned with the process of other courts.

The paucity of case authorities on the current subject is ample evidence of the fact that the relief, whilst recognised at law, is seldom resorted to.

It is only granted where a party succeeds in showing the court, that, the defendant or respondent is a serial litigator who has the tendency to abuse not only the court but also its process and his adversary.

It is important for the court to examine and establish the fact of whether or not the respondents fall into the category of serial litigators who abuse the applicants, the court(s), and their processes.

The dispute of the parties has its origin in the judgment of PATEL J…,.

The learned judge had the occasion to hear and determine the matter in which Chiroswa Minerals (Pvt) Ltd [“the company”] and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) brought before him under case number HH2612/11. The company and the second respondent had sued the following three parties – the Minister of Mines, one Morris Tendayi Nyakudya and the latter's company, Vambo Mills (Pvt) Ltd. They succeeded in having Mr Nyakudya and Vambo Mills (Pvt) Ltd evicted from the mine where they were operating in terms of an expired tribute agreement. They successfully moved the court to order the Minister of Mines to refer the tribute agreement, which they had concluded between them, to the Commissioner of Mines for approval and registration.

A reading of PATEL J's judgment, under HH261-11, tends to suggest, that, it was Chiroswa Minerals (Pvt) Ltd which entered into the tribute agreement with Morris Tendayi Nyakudya and his Vambo Mills (Pvt) Ltd. It is also not a far-fetched suggestion, that, Chiroswa Mills (Pvt) Ltd moved to enter into the second tribute agreement of the mine with the second respondent.

The abovementioned observations find support from the fact, that, it is Chiroswa Minerals (Pvt) Ltd, and not Chiroswa Syndicate, which moved for the eviction of Mr. Nyakudya and his Vambo Mills (Pvt) Ltd from the mine. The company worked hand-in-glove with the second respondent to achieve its desired end-in-view.

The impression which the company created in the mind of the respondents, at the time, was that it owned the mine. It could not successfully evict those from the same if it was not the owner of the mine. It would have had no locus standi to do so.

It is common cause, that, the fourth applicant (John Richard Needham Groves) owned Chiroswa Minerals (Pvt) Ltd. He, in appreciation of his good working relationship with the first respondent (Peter Valentine), donated 50% of his shares in the company to the first respondent. The first respondent, it is not in dispute, was or is the Managing Director of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The above observed matters do, in the court's view, account for the misunderstanding which later ensued between the fourth applicant (John Richard Needham Groves) and the respondents (Peter Valentine and Base Mineral Zimbabwe (Pvt) Ltd).

These, the first respondent in particular, must have laboured under the genuine but mistaken belief that they, or he, as a 50% holder of shares in Chiroswa Minerals (Pvt) Ltd, had a substantial interest not only in the company but also in the mine which the company owned.

The first respondent's belief in the mentioned regard finds support from a reading of MATANDA-MOYO J's judgment under case number HH557-14.

The first respondent (Peter Valentine) had, in the case, sued the first, second and fourth applicants (Mabwe Minerals (Pvt) Ltd, Tapiwa Gurupira and John Richard Needham Groves). He moved the court to set aside the agreement of sale of the mine which the fourth applicant had concluded with the first and the second applicants. He claimed that he owned 50% of the mine. He challenged his omission from participating in the sale of the mine. He insisted that the sale was, on the mentioned basis, null and void and had, therefore, to be set aside.

It is such belief, as has been stated in the foregoing paragraphs, which caused the respondents to file one suit after another with the courts.

They worked on the impression which had been created. They believed that they, or one of them, owned 50% of the shares in the company which owned the mine. They, therefore, made every effort to assert what they believed belonged to them.

The respondents belief was shattered when MATANDA-MOYO J ruled, to their disappointment, that, Chiroswa Syndicate, and not Chiroswa Minerals (Pvt) Ltd, owned the mine.

The respondents could not, under the stated circumstances, be said to have engaged themselves in a wild goose chase, as it were. They honestly believed, in the court's view, that, they were pursuing a genuine cause. They believed, further, that, the fourth applicant (John Richard Needham Groves) and the company were treating them unfairly. They, therefore, made effort to have their case determined by the courts.

The respondents unrelenting effort to assert their right, in what they believed belonged to them, took their case to a higher level in 2013.

In a matter which Chiroswa Minerals (Pvt) Ltd and the second respondent filed under case number HC5208/13, TAKUVA J remained alive to the judgment which PATEL J delivered under HH261-11.

The learned judge ordered the Minister of Mines, one Obert Mpofu, and the Commissioner of Mines, a Mrs E Kahonde, to process the tribute agreement which Chiroswa Minerals (Pvt) Ltd and the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) concluded as at the time of PATEL J's judgment and to have the same registered at the offices of the Mining Commissioner.

The order contained a stiff sanction which the Minister and the Commissioner would suffer if they did not comply with it. They would each be held to have been in contempt of court and be committed to thirty (30) days imprisonment.

It was as a result of TAKUVA J's order that the Mining Commissioner did, on 13 February 2014, register a tribute agreement in favour of the second respondent (Base Mineral Zimbabwe (Pvt) Ltd).

The fourth applicant represented the company and Chiroswa Syndicate in the tribute agreement which the parties registered with the Mining Commissioner. The first respondent represented the second in the same. The tribute was or is to endure for a period of three years. It would, therefore, expire on 13 February 2017.

Given the above described set of circumstances, it would be difficult, if not impossible, for one to suggest, as the applicants did, that the respondents were or are a nuisance to them.

The applicants, the fourth applicant in particular (John Richard Needham Groves), conveyed an impression to the respondents. These believed him, only to discover, at a later stage, that, he was hunting with the hounds and running with the hares, so to speak.

He dined and wined with them, as it were. He later switched his allegiance from them and proceeded to work with the applicants against them.

The fourth applicant was undoubtedly the main cause of the parties misunderstanding.

He, through his Chiroswa Minerals (Pvt) Ltd, worked with the second respondent (Base Mineral Zimbabwe (Pvt) Ltd) to evict persons who were at the mine from the same. He agreed to enter into a tribute agreement of the mine with the second respondent. He sold the mine to the first applicant (Mabwe Minerals (Pvt) Ltd). He sold his 50% shareholding in Chiroswa Minerals (Pvt) Ltd to the third applicant (Tag Minerals Zimbabwe (Pvt) Ltd).

He consulted no one in this complicated matrix which he created, not for himself, but for the respondents.

The court was not amused by the fourth applicant's manner of dealing with his business partners.

It viewed the applicants effort to conceal certain matters from it with serious disquiet.

They attached to the application a wrong tribute agreement. The agreement showed its life span as commencing on 14 December 2011 and expiring on 14 December 2014. They did not make any reference to the correct tribute agreement which was registered at the Mining Commissioner's offices on 13 February 2014. They plucked off the last page of PATEL J's judgment i.e. the page on which the learned judge's order was recorded. They made an effort not to disclose the existence of TAKUVA J's order under HC5208/13.

In acting as they did, the applicants aim and object were to paint the picture which showed, that, the respondents were a rogue element which must be placed under leash all the time, so to speak.

They, unfortunately for themselves, over-did their trick to a point where their story remained difficult, if not impossible, to believe.

They were ably legally represented in this and other actions or applications. Their legal practitioner should have been more candid with the court than he did. The court, therefore, viewed the conduct of the applicants and their legal practitioner with displeasure.

The respondents could not be faulted for having made an effort to assert their right in what they believed belonged to them. They cannot be blamed for asserting their right in the tribute agreement which was registered in the second respondent's favour on 13 February 2014.

That agreement is still extant. It will only expire on 13 February 2017.

The application cannot, on the basis of the foregoing, be allowed to stand.

A decree of perpetual silence, as I understand it from the papers which were placed before me, is a very extraordinary remedy. It seeks to make a person not deaf but dumb before the court which perpetually silenced him. Its aim and object are to bar him from instituting any criminal or civil proceedings against the party in whose favour the bar operates. It bars him from litigating or prosecuting except with the leave of a judge or the court, and for good cause shown, as well as on notice to his adversary. It sees him as a serial litigator who abuses the court, its process, and his adversary with no end which is of any benefit to him being ever in sight.

Its extraordinary character lies in that, once it is granted, it deprives a person of his constitutional right to litigate or to prosecute.

It can, for the mentioned reasons, be granted only in exceptional circumstances.

The respondents in casu were not shown to be a set of serial litigators. They were not shown to have been suing or prosecuting the applicants with no end in sight which was not of benefit to them. They had, and still have, a clearly defined cause which they were, and are, enforcing. They took the long road to realise their intended benefit because of unsound advice which their erstwhile legal practitioner continued to dish out to them. He made them use the wrong method to achieve their lawfully acquired right.

They should not, therefore, be made to suffer for the sins of their legal practitioner.

Indeed, the courts expressed their displeasure against the legal practitioner when they ordered him to pay costs on two separate occasions. Such was the height of the courts lack of amusement on the work of the respondents legal practitioner.

If he had sat down to reflect, as he should have, he would have realized that something was not sticking in the manner that he approached the case of his clients.

The court has considered all the circumstances of this case. It is satisfied that the applicants were not able to discharge the onus which rested upon them. Their application stood on nothing. They made their case less credible by concealing vital evidence which related to the application.

The application is, accordingly, dismissed with costs on a higher scale.

HH969-15 : IAN MASAMBA and IGNATIUS MASAMBA vs DIRECTOR – ZIMSEC
Ruled By: MUNANGATI-MANONGWA J

In as much as individuals have constitutional rights to bring whatever claims they have to the courts for adjudication, it is necessary to ensure that processes comply with the Rules of court and that they are fully and legally informed regarding the decisions to take legal action.This claim borders on ...

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS
Ruled By: MAFUSIRE J

The first applicant was a duly registered co-operative society. The parties to this matter were two factions of its membership.

The one faction comprised applicants 2 to 6 (Never Kowo, Keri Mhute, Andrew Marauka, Charles Matapo and Jotamu Nkala).

The other was respondents 1 to 5 (Simba Moyo, Enesia Gutu, Elizabeth Gutu, Lloyd Hamamuti and Austin Hove).

Both sides were fighting for the control of the first applicant (Nehanda Housing Co-operative Society).

Both claimed to be the legitimate management committee of the first applicant. Both claimed to have been duly installed in office following due process.

For applicants 2 to 6, their claim to office was an alleged election allegedly won by them in September 2014. For the respondents, their claim to office was an alleged vote of no confidence against applicants 2 to 6 allegedly passed by the majority of the first applicant's members in April 2015.

The case before me was the return date of a provisional order issued by this court [per TAGU J] on 27 June 2015. It read [words in parenthesis added to somewhat straighten it out]:

“TERMS OF [FINAL] ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made on the following terms:

1. That 1st to 5th respondents be and are hereby interdicted, restrained, and barred from conducting themselves as the managing committee of the 1st applicant pending the finalization of the Supreme [Court] Case No. SC267/15.

2. The 1st to 5th respondents jointly and severally with [the] one paying [and] the other[s] to be absolved be and are hereby ordered to pay [the] cost[s] of this application [on an] attorney and client scale.

INTERIM RELIEF GRANTED

1. Pending the finalization of this provisional order, the 1st to 5th respondents be and are hereby interdicted, barred, and restrained from holding any meetings for the purposes of running or deliberating on the management/or affairs of the applicants.”

During argument, it was apparent to me, that, the fight had nothing to do with the interests of the first applicant per se. It had everything to do with the protection of individual interests and the preservation of egos.

The interests of the first applicant seemed to have been consigned to the periphery.

Even though both sides purported to canvass the requirements for an interdict, namely, a prima facie or clear right; a well-grounded apprehension of an irreparable harm; an absence of an alternative remedy; and the balance of convenience should the interdict be granted or refused [see Setlogelo v Setlogelo 1914 AD 221…,.; Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 [1] ZLR 289 [SC]…,; and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 [1] ZLR 234 [H]…,.] it was clear to me, that, this was a mere perfunctory exercise.

I wondered how, if the focus of the legal contest was really the first applicant, either of the parties could legitimately claim a right that could be harmed irreparably, with no other alternative remedy and how the balance of convenience could be said to favour either of them were I to confirm or discharge the provisional order.

It was just not adding up.

But, the protagonists having come to court, the outcome would have to be either win or lose, for one or other of them.

However, before reaching that point of finality, I suggested an alternative course of action, which, if acceptable and followed through, could produce an outcome that should be acceptable or binding to all.

It was this.

Could both sides consider going back and hold a fresh election within a reasonable period of time, say ten days from the date of any directive that I might give, and the winners of such an election be accepted as the legitimate management committee of the first applicant?

The modalities of running such an election could always be worked out later on if the suggestion was acceptable in principle.

At first, my suggestion was, through counsel, enthusiastically accepted by both sides. So, the matter was adjourned to another day to allow for further consultations and the crafting of an order by consent.

On resumption, a further postponement was sought and granted for the purposes of putting final touches to the Deed of Settlement and the draft consent order.

However, as a precautionary measure, I insisted on a deadline for the filing of the draft order by consent failing which I would hand down my decision on the merits.

I told the parties that I had come to a decision on the merits but that I would much rather defer it to their Deed of Settlement.

It is always preferable for litigants to settle their disputes amicably rather than through a court order which neither party might find palatable.

Thus, it was agreed, that, unless the Deed of Settlement was filed by 4 December 2015, I would proceed to hand down my judgment.

However, well before that date, I received communication to the effect, that, there was no chance of an out of court settlement as the parties were wide apart from each other, and that, therefore, they would be most happy to receive my judgment on the merits.

So, this here is my judgment on the merits.

I found the conduct of the applicants unacceptable. I am referring to the applicants 2 to 5 (Never Kowo, Keri Mhute, Andrew Marauka and Charles Matapo).

The first applicant, the soul for which both sides were fighting to control, had nothing to do with this wrangle.

The applicants conduct, that I found unacceptable, was that they were guilty of forum shopping and material non-disclosure.

The provisional order by TAGU J, on 27 June 2015, the confirmation for which was before me, was the second in a space of twenty-two or so days.

On 4 May 2015, this court, per MATANDA-MOYO J, had dismissed the same application.

The applicants did not disclose this in their founding papers. So, the learned TAGU J must obviously have been unaware of this information when he granted the provisional order.

I was told, that, the respondents were by then not represented. They had filed no opposing papers. They only did so afterwards when they were opposing the confirmation.

In my view, a party that conceals material information must be unworthy of the protection or assistance of the court. If you seek relief, you must take the court into your confidence, laying bare all the relevant facts on the matter - even those that you may perceive to be adverse to the relief that you seek.

As long ago as 1849, an English judge, WIGRAM VC, put it this way in a case, Castelli v Cook (1849) 7 Hare 89, 94, that was cited with approval in the English case of Rex v Kensington Income Tax Commissioners: Ex Parte Princes Edmond de Polignac (1917) 1 KB 486…,:

“A plaintiff applying ex parte comes…, under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when the other party applies to dissolve the injunction, that any material fact has been suppressed or not properly brought forward, the plaintiff is told that the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go.”

In Ex Parte Princes Edmond de Polignac (1917) 1 KB 486, the applicant, a wealthy American lady who had been twice married to French subjects and was domiciled in France, had obtained an injunction against the collectors of revenue in Kensington, one of the parishes in England. The basis of the injunction had been that she was neither domiciled nor ordinarily resident in England, but Paris, France; and that the house, in a certain locality in that parish, which she frequently visited as her brother's guest for very short periods of time, allegedly not exceeding six months per any one visit, and upon which the local collectors of revenue had based her liability for income tax, was, in fact, owned by her brother. However, a former employee of her solicitors who had been disgruntled for having lost his job, hit back by supplying the collectors of revenue with information and documents showing that the house was practically owned by the lady and that the brother was no more than a mere front.

The information that subsequently came to light, and which the lady was subsequently forced to admit, was that, among other things, she had been the one that had provided the purchase price for the house; she had been the one that had bought the furniture in it; she had been the one that had paid all the rates and taxes for the property; she had been the one that maintained it on a regular basis; and that she had been the one that received the rentals from it.

On the return date, the King's Bench Division refused to hear the matter on the merits and discharged the rule nisi on the basis that the lady had concealed material facts when she had obtained the injunction ex parte.

VISCOUNT READING CJ, delivering the judgment of the court, said…,.:

“Where an ex parte application has been made to this Court for a rule nisi or other process, if the court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but, stated them in such a way as to mislead the Court as to the facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits.

This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived.

Before coming to this conclusion, a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts.

But, if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then, it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.”

The applicant appealed. But she lost. The decision of the King's Bench Division was confirmed.

It was stressed by the Court of Appeal, that, it was incumbent, in an ex parte application, that, the applicant should make the fullest possible disclosure of all relevant facts, failing which he cannot obtain any advantage from the proceedings and that he will be deprived of any advantage he may have already obtained.

The court further said, that, an application for a special injunction is governed by the same principles which govern insurances. Both are matters that require the utmost degree of good faith or uberrima fides.

In the case of insurance, if the insured should conceal anything that may influence the rate of premium, whether or not he is conscious of it, the policy is entirely vitiated.

The same applies to applications for injunctions made ex parte. Failure to disclose material facts disentitles the applicant to the relief which he seeks, or dis-entitles him to keep the one he had already obtained. The court will not go into the merits.

It is also the law in South Africa, that, the utmost good faith must be observed by litigants making ex parte applications by placing before the court material facts that might affect the granting of the provisional order: see HERBSTEIN & VAN WINSEN, The Civil Practice of the High Courts of South Africa 5th ed. Vol 1…,.; De Jager v Heilbron & Ors 1947 [2] SA 415; Schlesinger v Schlesinger 1979 [4] 342…,.; and MV Rizcun Trader [4] MV Rizcun Trader v Manley Appledore Shipping Ltd 2000 [3] SA 776 [C].

In casu, the applicants do not seem to have learnt a lesson.

MATANDA-MOYO J dismissed their first urgent chamber application for non-disclosure of material facts. They had concealed the fact, that, the respondents claim to office was on the basis of the vote of no confidence of April 2015. At p3 of the cyclostyled judgment, Her Ladyship said this:

“The applicants have not been candid with this court in the present application. They distorted the facts. The applicants were aware that an emergency meeting was called for, on 24 April 2015, where a vote of no confidence was passed on the second to the sixth applicants, but, decided to mislead this court by submitting that the first to fifth respondents 'unlawfully declared themselves the new management committee for the first applicant.' Such facts were not correct. In the hearing, it also became apparent, that, the second to the sixth applicants were advised of the meeting but decided not to attend.”

It seems the learned judge found nothing wrong with the vote of no confidence. Among other things, she found, that, the meeting that passed it had been properly convened and properly constituted in terms of the Co-operative Societies Act [Chapter 24: 05]. She then concluded as follows:

“The withholding of such information, by the applicants, was a ploy to mislead this court and to keep this court in the dark and trying to make this court believe that the first to the fifth respondents simply woke up and declared themselves the new management committee of the first applicant through a newspaper article of 29 April 2015. It is settled law, that, a person who approaches the court for relief ought to be candid with the court. Such an applicant ought to disclose all the material or important facts and refrain from suppressing facts within his knowledge. Once found out, such an applicant ought to be denied the relief sought.”

The learned judge then cited the case of Rex v Kensington Income Tax Commissioners: Ex Parte Princes Edmond de Polignac (1917) 1 KB 486 as authority for her decision to dispense with the merits of the dispute.

However, with all due respect to my learned sister judge, the principle laid down in Rex v Kensington Income Tax Commissioners: Ex Parte Princes Edmond de Polignac (1917) 1 KB 486, the English authority…, related to ex parte applications, not ordinary court applications or chamber applications on notice of motion.

An ex parte application is one made in the absence of the party who will be affected by the order that the court is asked to grant. It is in respect of such applications that the uberrima fides rule was said to apply.

In Schlesinger v Schlesinger 1979 [4] 342, it was said…, there are three principles of the uberrima fides rule as they apply to ex parte applications, namely:

[1] That all the material facts which might influence the court in coming to a decision must be disclosed;

[2] That non-disclosure, or suppression of such facts need not be wilful or mala fide to incur the penalty of rescission of the order obtained ex parte; and

[3] That the court, on being apprised of the true facts, has a discretion to confirm or discharge the provisional order.

In Trakman NO v Livshitz 1995 [1] SA 282 [A] the South African Appellate Division refused to extend the uberrima fides rule of ex parte applications to ordinary opposed motion proceedings on the basis there was no authority for such an extension and that there was no sound reason for doing so. The court said opposed motion proceedings could not be dismissed solely on the ground that the applicant had failed to disclose fully or fairly all material facts.

Delivering the judgment of the five judges of the Appellate Division, SMALLBERGER JA said…,.:

“It is trite law that in ex parte applications the utmost good faith must be observed by an applicant. A failure to disclose fully and fairly all material facts known to him (or her) may lead, in the exercise of the Court's discretion, to the dismissal of the application on that ground alone: see, for example, Estate Logie v Priest 1926 AD 312; Schlesinger v Schlesinger 1979 [4] SA 342 [W] at 348E–350B].

I know of no authority, and Mr Pincus was unable to refer us to any, which extends that principle to motion proceedings and would justify the dismissal of an opposed application [irrespective of the merits thereof] for the reasons given by the Judge a quo.

The reasons given by the Judge a quo, ROUX J, were, at p286H–I of the Appellate Division's judgment:

'There is a further consideration which relates to both the facts of the review and costs. Since May 1986, the applicant [appellant] and his attorney, Kruger, have had intimate and, as far as the other litigants are concerned, exclusive knowledge of the cession. On his own, or on Kruger's advice, the applicant has misled this Court by his silence. This silence becomes all the more sinister when the delaying tactics of the applicant, as plaintiff, are taken into account. I need not list all the procrastinations. There is ample evidence before me to show sinister motives. The failure to disclose the cession for six years is inexcusable. This failure is only consistent with dishonesty. When dishonesty is harnessed to mislead the Court, to harass the other litigants, and to obtain undue advantage it will be met with the sternest disapproval. Because of his behaviour, I would also dismiss the application....,.'

Nor is there any sound reason for so extending the principle.

Material non-disclosure, mala fides, dishonesty, and the like, in relation to motion proceedings may, and in most instances, should be dealt with by making an adverse or punitive order as to costs but cannot, in my view, serve to deny a litigant relief to which he would otherwise have been entitled. No justification therefore existed for the dismissal of the application on the alternative basis.”

In that case, the court a quo had dismissed an application for review on the ground that the applicant lacked locus standi because he had already ceded his rights of action to someone else. His argument, that there had been a re-cession of the cause of action back to him, had been dismissed by the court as a lie.

The court had also dismissed, as shown above, the application, on the alternative basis of non-disclosure of material facts, namely, the cession of rights aforesaid.

With due respect, I have found the approach of the South African Appellate Division in Trakman NO v Livshitz 1995 [1] SA 282 [A] non-persuasive.

I am mindful that it was a decision of five judges of appeal.

But, with all due respect, I have found no cogent justification for restricting the uberrima fides rule strictly to ex parte applications only.

The Appellate Court said there was no sound reason to extend the principle to ordinary motion proceedings. But, I also find none for not extending it either.

In my view, the underlying reason why an applicant may be non-suited where he conceals material information from the court, as VISCOUNT READING CJ said in Ex Parte Princes Edmond de Polignac (1917) 1 KB 486, is to protect the court itself.

That is, in my view, to protect its integrity. It is to prevent an abuse of its process.

There are several instances when a litigant's infraction or misconduct is so gross as to warrant the court withdrawing its jurisdiction altogether, in spite of the inherent power reposed in it to punish such misconduct by a punitive order of costs: for example, a litigant coming to court with dirty hands has no right of audience; a litigant guilty of contempt of court may not be heard; a litigant that continuously overburdens the courts with endless frivolous or spurious suits may be silenced perpetually.

In my view, the court's decision, to refuse to entertain a matter on the merits because of some wrong done by the petitioning litigant, must, to a large extent, depend on the nature of the litigant's misconduct and the circumstances surrounding it.

In Trakman NO v Livshitz 1995 [1] SA 282 [A], it turned out that the issue of the cession, although not disclosed in the court a quo, had been common knowledge, not only to the litigants themselves, but also to virtually all the other interested parties. That the cession had not been disclosed had not been an issue for contest. It had not been fully debated. Only the aspect of locus standi had been an issue.

Thus, in my view, the non-disclosure of the cession had not been such a material aspect as would have forfeited the applicant's right to be heard on the merits.

In contrast, in the present matter, not only did the applicants conceal before TAGU J the question of the vote of no confidence against them, but also, and crucially, the fact that some twenty-two days before, this same court, per MATANDA-MOYO J, had dismissed the same application on the basis, it seems, of the same failure to disclose the aspect of the vote of no confidence.

Because of that non-disclosure, what the applicants had initially failed to get before MATANDA-MOYO J they had subsequently got before TAGU J.

This, to me, amounted to forum-shopping.

It was conduct that, in my view, was so culpably iniquitous as to forfeit the applicants right to be heard on the merits. It was conduct that gnawed right at the heart of the integrity of the court.

Furthermore, in an urgent chamber application under Order 32 of the Rules of this court, particularly one accompanied by a certificate of urgency as prescribed by Rule 242(2)(b), a judge may well decide the case solely on the basis of the applicant's papers if he is satisfied that the matter is indeed urgent and that a prima facie case for relief has been made out.

The respondent's right to be heard, in terms of the audi alteram partem rule of natural justice, may be deferred to the return date: but, immeasurable damage may be caused if the applicant's papers are misleading by reason of, for example, a material non-disclosure.

The almost inflexible rule of practice by the judges of this court, to invariably insist on service of the urgent chamber application on the respondent before the matter is heard, does not absolve the applicant from disclosing all the material facts surrounding the dispute.

Therefore, I would discharge the provisional order of this court, on 27 June 2015, on the basis of non-disclosure of material facts by the applicant and without going into the merits.

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

Let me underscore the fact that effective access to justice is the underlying consideration in the application of our procedural jurisprudence....,.The rules of court must always be interpreted in a way that gives effect to the scales of justice that they are designed to balance.

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

In The Ampthill Peerage [1977] AC 547…, LORD WILBERFORCE remarked as follows:“Any determination of dispute of fact may, the law recognises, be imperfect; the law aims at providing the best and safest conclusion compatible with human fallibility, and, having reached that solution, it closes the book. The law knows, and ...

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

On 4 November 2021 the High Court (“the court a quo”) struck off the roll with costs on a higher scale an urgent application filed by the appellant for an order directing the third respondent (Equity Properties (Pvt) Ltd) to forthwith surrender to the fourth respondent (Registrar of Deeds N.O.) a replacement Deed of Transfer number 9068/2008 and barring the third respondent from using such replacement Deed of Transfer in lieu of the original on the pain of costs on the adverse scale.

This appeal is against that striking off judgment which the appellant would like to have set aside and substituted with the substantive relief it unsuccessfully sought in the court a quo.

BACKGROUND FACTS

The facts relevant to the resolution of this appeal are largely common cause.

The first respondent (Deposit Protection Corporation) is the liquidator of Interfin Banking Corporation (“Interfin”) which is undergoing final liquidation. The second respondent (Kiitumetsi Zawanda) is the Company Secretary of the first respondent whom the appellant elected to join as a party to the proceedings, in her personal capacity, for unclear reasons.

The third respondent (Equity Properties (Pvt) Ltd) is the owner of certain immovable property known as Lot 3 of Bannockburn, Harare which it holds by Deed of Transfer Number 9068/2008.

As security for a debt owed to Interfin Banking Corporation (Interfin), the third respondent surrendered its title deed to Interfin which registered Mortgage Bond No.5818/2011 on the title deed.

In turn, Interfin obtained certain sums of money from the appellant which it secured by the third respondent's title deed surrendered to the appellant.

Since then, the appellant has tenaciously held onto the title deed in question despite demand for its release made by the liquidator in the discharge of its duties as such.

Indeed, the liquidator was constrained to demand the surrender of the title deed after the third respondent acquitted all its indebtedness to Interfin, the company in liquidation, thereby obliging the liquidator to cancel the mortgage bond.

Following the repayment of the loan, the liquidator was also obliged to hand the title deed over to the third respondent.

Bereft of any sense of solution, the liquidator applied for a replacement title deed from the Registrar of Deeds, the fourth respondent herein.

The fourth respondent acceded to the application and issued a replacement title deed on 7 September 2021.

That triggered the present litigation.

The appellant moved swiftly and filed an urgent application for a mandamus on 13 October 2021.

As I have said, it sought, in the interim, the immediate surrender to the fourth respondent of the replacement title deed and the barring of the third respondent from using it for whatever purpose.

The basis of the application was that, not only were the respondents aware that the appellant was in possession of the original title deed, the third respondent was selling properties to individuals using the replacement title deed.

According to the appellant, the third respondent's conduct was causing irreparable damage and undue hardship to it by dissipating the immovable property.

The application was opposed by the first, second, and third respondents.

They raised a number of preliminary objections, chief among which were the failure of the appellant to obtain leave of the court to sue the first respondent, the liquidator of a company in liquidation, and the misjoinder of the second respondent in her personal capacity.

The court a quo found that the application was improperly before it by reason that no leave to sue had been sought and obtained before embarking on litigation.

In arriving at that conclusion, the court a quo followed the case of Chikura N.O. & Anor v Alshams Global BVI Ltd SC23-20 in which this Court remarked…,.:

“As correctly observed, in part, by the court a quo, leave of the court is required before proceeding against a company and/or bank in liquidation.

This is so because the broad purpose of the law of insolvency, and the winding up of companies, is to ensure due distribution of the insufficient assets of the debtor company amongst the competing creditors under the watchful eyes of the court. Thus, the position is settled at law that an order placing an estate or a company in liquidation has the effect of creating a concursus of the creditors of the insolvent and no creditor can thereafter do anything that will alter the rights and interests of other creditors without the leave of the court.

Unsupervised and unsanctioned litigation and proceedings against the insolvent will disturb the due distribution of the insufficient assets and remove the role of the court from the process.

It may also be added, that, the leave of the court is necessary in such circumstances as a broader consideration of protecting the economically fragile company from unnecessary litigation quite apart from merely protecting the interests of the creditors.

It being common cause that leave of the court was not sought and obtained prior to the institution of the proceedings a quo, the appeal succeeds on this basis alone.”

Indeed, as in the present case, the respondent in that case had sued the liquidator of Interfin Banking Corporation (Interfin) without the leave of the court.

It argued, that, the cause was not against the Bank but was against the liquidator as an administrative authority under the Administrative Justice Act [Chapter 10:28].

The court a quo refused to be drawn to consider the merits of the application. It reasoned, at paragraph 20 of its judgment:

“There are set procedures that are followed by a creditor to recover a debt from a company under liquidation.

Leave to sue is necessary for a party to show the court why its particular case needs a suit outside the normal procedures that are there for recovering a debt by creditors through the appointed liquidator.

It is the court that is tasked with assessing the merits of any application, including its prospects of success, based on the sufficiency of evidence placed before it. Indeed, it would have been under such an application for leave to sue that an issue such as that raised by respondents herein, that the company is not registered locally, would have been considered under prospects of success in determining whether or not that leave to sue should be granted.”

THE APPEAL

The appellant was thoroughly disgruntled by that outcome.

It launched this appeal on six (6) grounds, including an attack on the conclusion of the court a quo that leave to sue was required.

Although there are multiple grounds, the issue for determination is very narrow indeed.

It is whether there was need for leave to be sought and obtained before filing the application against the liquidator.

I should add, that, prior to the date of hearing of the appeal, the first and third respondents gave notice of objections in terms of Rule 51 of the Supreme Court Rules 2018.

After hearing counsel on the objections, this Court requested to be addressed on the merits while parking its decision on the preliminary objections.

This was done in the interest of expediency to avoid reconvening again depending on the outcome of the preliminary objections.

Accordingly, with the consent of the parties, the court heard the merits of the appeal on the understanding that they will only be related to in the event of the preliminary objections not being upheld.

I proceed therefore to consider those objections.

Counsel for the first and second respondents premised his objections on three (3) points:

(i) First, counsel submitted that the judgment of the court a quo sought to be impugned, to the extent that it merely struck the applicant's application off the roll for want of leave to sue the liquidator, is not appealable at all. It does not meet the requirements of a judgment that can be appealed against.

In advancing that argument, reliance was placed on two South African authorities. The first is the case of Zweni v Minister of Law and Order 1993 (1) SA 523 (A) which set out three attributes of an appealable judgment. These are that;

(i) The decision must be final in effect and not susceptible to alteration by that court;

(ii) It must be definitive of the rights of the parties by granting definite and distinct relief; and

(iii) It must have the effect of disposing of at least a substantial portion of the relief claimed in the proceedings.

The first and second respondents case is that none of the foregoing three requirements of an appealable judgment exist in the impugned judgment because the court a quo deliberately refrained from delving into any of the merits of the dispute. Instead, it was content to strike off the application on the basis that leave was not obtained. The court a quo will still determine the merits once leave is obtained.

The other authority cited by counsel for the first and second respondents is Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A)…, where the following remarks were made:

“A wholly unrestricted right of appeal from every judicial pronouncement might well lead to serious injustices. For, apart from the increased power which it would probably give the wealthier litigant to wear out his opponent, it might put a premium on delaying and obstructionist tactics.

This latter consideration has, I imagine, been the predominant one in leading legislators to try to restrain the bringing of appeals from orders of a preparatory or procedural character arising in the course of a legal battle.”…,.

Contesting that preliminary objection, counsel for the appellant submitted that whenever there is a sentence or judgment of the court that a litigant is unhappy with, there is a right to appeal.

In counsel's view, it would be a sad day indeed, were certain matters be made to end at the court a quo without testing their correctness on appeal.

(ii) Second, counsel for the first and second respondents submitted, that, the judgment of the court a quo, that the application was improperly before it for want of leave to sue the liquidator, and therefore striking it off the roll, was interlocutory in nature. For that reason, so it was argued, it could not be appealed without the leave of the court a quo.

In counsel's view, the striking off of the application was merely a procedural step which, at best, was merely interlocutory. To that extent, any challenge of the judgment is regulated by section 43(2) of the High Court Act.

Counsel for the third respondent also took a similar preliminary objection based on absence of leave to appeal.

She submitted, associating herself fully with submissions made on behalf of the first and second respondents, that, for all intents and purposes, the striking off was interlocutory.

Counsel maintained, that, the appeal is improperly before the court because leave to appeal was not sought.

In addition, counsel for the third respondent urged the court to take judicial notice of proceedings instituted by the appellant in case number HC6264/21.

According to counsel, it is an application, exactly the same as the one forming the basis of this appeal, brought by the appellant after its initial application was struck off the roll. It seeks the same relief, except that in it the appellant did not join the executor and its Company Secretary.

It was submitted that this was a clear case of peremption.

The right of an unsuccessful litigant to appeal, it was argued, is perempted when that litigant, at the same time, complies with the judgment.

By filing the same application, without citing the first and second respondents, the appellant should be taken as having accepted the correctness of the judgment a quo.

In response, counsel for the appellant did not directly address the question whether the judgment was interlocutory and therefore requiring leave of the court a quo before an appeal could be noted.

He submitted, that, in the body of the judgment, the court a quo commented on the merits of the matter. For that reason, the court is at liberty to entertain the appeal even though leave was not sought.

In making that argument, counsel for the appellant relied on the case of Portland Holdings Ltd v Tupelostep Investments (Pty) Ltd & Anor SC03-15 in which an application was adjudged by the court a quo as not urgent. The court a quo had however gone on to dismiss the application instead of striking it off the roll to enable the applicant therein, if it so wished, to proceed with the application as an ordinary application.

Apart from that, the court a quo had also made several comments on the merits of the matter and also overlooked most of the relevant evidence pointing to the urgency of the application.

This Court was clear that “the matter ought to have been dealt with on the basis of urgency.”

Taking all the mistakes made a quo into account and that the Appeal Court was in as good a position as the court of first instance to determine the matter and substitute its own discretion, this Court allowed the appeal. It granted the relief sought in the application.

Counsel for the appellant urged of this Court the adoption of the same approach because the court a quo, in the present case, also made comments on the merits of the matter.

He submitted that this Court should grant the full relief sought a quo even though the court a quo did not relate to the merits or the relief sought.

Regarding preemption, it was submitted on behalf of the appellant that its grief with the judgment a quo was recorded in the notice of appeal filed in this Court. In counsel's view, the fact that subsequent to the filing of that notice of appeal, the appellant saw it fit to return to the court a quo with another application did not signify satisfaction with the judgment appealed against.

This is so, so the argument goes, because the parties in the subsequent application are different from those in the present matter.

ANALYSIS

Regarding the issue whether the judgment of the court a quo is appealable: my view is that the procedure for appealing in this jurisdiction is heavily regulated.

As shall become apparent shortly, even the orders of the nature of the one which is the subject of the present appeal, are regulated by statute. As such, if the legislature intended to constrain any right of appeal it would have said so in specific terms.

Indeed, even the authority relied upon by counsel for the first and second respondents, Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A) presupposes that the restrain from appealing certain court orders has to be imposed by the law-giver before the right of appeal can be restricted or prohibited.

I am therefore not persuaded by the first leg of the first and second respondents preliminary objection. It is accordingly rejected.

In my view, that position accords with the constitutional right of access to the courts for the resolution of any dispute enshrined in section 69(3) of the Constitution.

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.FACTUAL BACKGROUNDThe appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.The ...

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.

FACTUAL BACKGROUND

The appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.

The first and second respondents are also husband and wife and are the leaders (prophet and prophetess, respectively) of the United Family International Church (UFIC).

In the court below, the appellants instituted an action against the respondents, under HC7214/18 claiming a total sum of US$6,535,000 to be paid jointly and severally, the one paying the others to be absolved, broken down as follows:

“(a) Damages for US$700,000 being the value of property number 14 Edinburgh, Marlborough, Harare.

(b) A refund of the sum of US$1,698,000 for misrepresentation.

(c) US$37,000 being refund for fees paid to Tichaona Mawere.

(d) An amount of US$1,100,000 being a refund paid to the defendants.

(e) An amount of US$2,000,000 being damages for fraud and misrepresentation.

(f) An amount of US$500,000 being damages for mental anguish.

(g) US$500,000 being damages for defamation of character. (sic)

(h) Payment of interest on the sums in (a) to (g) above at the prescribed rate from the date of demand to the date of full and final payment.

(i) Payment of costs of suit on a legal practitioner and client scale.”

The claims were particularised in the declaration as summarised hereunder:

CLAIM ONE

In 2012, and during church proceedings, the first and second respondents fraudulently misrepresented to the appellants “that anyone with a bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.” (sic)

It is alleged, that, this followed after the respondents had been 'privately' informed that the appellants had an existing ZB Bank loan in the sum of US$500,000.

As a result of this misrepresentation, the appellants were induced not to pay back the loan, and, as a consequence, the Bank executed on their immovable property thus causing them to lose a property worth US$700,000.

CLAIM TWO

In the same year, the respondents misrepresented in church, that, one Tichaona Mawere (Mawere) “was a great lawyer and that he would not lose a case” when in fact he was not a registered legal practitioner.

Acting on the misrepresentation, the appellants instructed the said Tichaona Mawere (Mawere) to handle their matter for a claim of US$1,698,000 and expended fees in the sum of US$37,000. Mawere produced fake court orders resulting in them making a loss to the tune of US$1,735,000.

CLAIM THREE

That, in the period ranging from 2014 to 2016, the appellants were called on stage in church. The respondents would announce that the appellants “were a successful example in the Ministry.”

Acting on these “misrepresentations” the appellants made various direct contributions amounting to US$1,100,000 to the respondents. The respondents would represent “that, in so contributing, the plaintiffs (the appellants) would reap what was commensurate with their contributions.”

CLAIM FOUR

The appellants were again paraded in church on stage “as a chosen people by God to have succeeded in business.”

As a result of that further “misrepresentation” the appellants marketed the respondents prophecies for the advancement of the respondents interests and “their prophesies as the success story of the prophesies.” In the process, the appellants were prejudiced to the tune of US$2,000,000.

CLAIM FIVE

Before the amendment, which I shall deal with later, the claim was that “the defendants (the respondents) caused damages through defamation (sic) by publishing false articles against the plaintiffs and their business activities; articles claiming that the plaintiffs perfumes cause cancer.”

CLAIM SIX

The appellant's claimed that “the defendants caused mental anguish to the plaintiffs, emotional embarrassment and torture by exposing the plaintiffs private lives on the defendants Facebook online page 'The Truth About Prophet Makandiwa.'”

It was further averred, that, the information had been given to the respondents “in private” and the statements were meant to destroy their reputation.

Upon being served with the summons, the respondents entered an appearance to defend.

They further addressed a letter to the appellants, in terms of Rule 140 of the High Court Rules 1971 (the Rules), to the effect that the claims in question were vague and embarrassing and that they did not disclose a cause of action.

It was averred that it was not clear whether the appellants were suing in terms of Contract or under the Law of Delict, and, as regards claims five and six, whether the claims were made under defamation or injuria.

The appellants did not respond to this letter.

Consequently, the respondents filed an exception to the appellants summons and declaration.

The exception was dismissed on 12 January 2018 by MANGOTA J who ordered that the appellants amend their declaration in respect of claims five and six, that the respondents file their plea, and that the matter proceeds in terms of the Rules.

As directed, the appellants amended their declaration in respect of claims three, five, and six.

CLAIM THREE

It was amended by the addition of paragraph 20.1.

It was claimed, that, upon being confronted by the appellants, the respondents undertook to repay the appellants all the money they had contributed upon proof of such payment. Despite being furnished with the proof, the respondents have refused or neglected to pay in accordance with their undertaking.

CLAIM FIVE

It was amended by deleting the original claim and substituting it as summarised below:

The appellants were in the business of manufacturing and selling perfumes. On or around 16 August 2016, and after the fallout between the appellants and the respondents, the respondents caused to be published an article in the Herald Newspaper in which they said:

“You just need one person who can move around telling people that your perfumes can cause cancer and the news begins to spread; your company will begin to go down.” (sic)

“The statement was false and the respondents intended to spread a rumour and thereby injure the appellants in their trade. In view of the close relationship between the parties before the fallout, the words of the respondents caused a rumour to spread that the appellants perfumes cause cancer. As a result of the statement, and the subsequent rumours, the public desisted from purchasing appellants perfumes. Consequently, the appellants, through their company, ceased to manufacture the perfumes. The appellants suffered damages due to the respondents wrongful conduct in the sum of USD$500,000.”

CLAIM SIX

The original claim was deleted and substituted with a claim summarized as follows:

On or about 2 February 2017, the respondents caused to be published on their Facebook page titled “The truth about Emmanuel Makandiwa” private and intimate details of the appellants which they had received in confidence. The publication of the details was wrongful and was done with an intention to injure the appellants standing in society, and was done in the wake of the fallout between the parties. Appellants suffered damages, as a result of the unlawful intrusion into their private lives, in the sum of USD$500,000.

Following the dismissal of the exception, and, on 23 February 2018, the respondents filed an application for the dismissal of the appellants claims in toto in terms of Order 11 Rule 75 of the High Court Rules, under HC1774/18.

The respondents, having failed to prosecute their application under HC1774/18 timeously, the appellants filed a chamber application for dismissal of the same for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules, on 8 May 2018, under HC4197/18.

Since both matters were set down for hearing at almost the same time, and, before different judges, a request was made for their consolidation and it was granted.

DETERMINATION BY THE COURT A QUO

The court' s approach was to determine the application in terms of Rule 236(3)(b) of the High Court Rules under HC4197/18 first.

It opined, that, if it granted the relief being sought by the appellants that would be the end of both matters. If it dismissed the application, then, it would proceed to hear the respondents application in terms of Rule 75 of the High Court Rules, under HC1774/18, which it coined the main matter.

Regarding the application for dismissal for want of prosecution, the court found that the reasons proffered for the delay in prosecuting the matter were reasonable. It also stated that it had a discretion to discharge the application or make any other order as it deemed fit in the circumstances.

In the result, the application for dismissal for want of prosecution was dismissed and the court ordered that the main matter be heard on the merits.

Pertaining to the issue of the dismissal of the appellants claims, in terms of Rule 75 of the High Court Rules, the court a quo dealt with each of the appellants claims in turn.

It found, that, the appellants claims were frivolous and vexatious and warranted summary dismissal.

Aggrieved by the decision of the court a quo, the appellants noted an appeal to this Court. This is the appeal that this Court is seized with.

GROUNDS OF APPEAL

“1. The court a quo erred and misdirected itself in that having found that respondents had, by their admission, failed to prosecute their cause within the prescribed period, it ought to have dismissed for want of prosecution; no special circumstances existing to exercise a discretion in their favour.

2. The court a quo grossly erred and misdirected itself in that a prior judgment of the High Court, in HH10-18, having established that a valid and substantiated cause of action based on fraud existed between the parties, it could not render otherwise.

3. A fortiori the court a quo effectively reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction on the same cause, between the same parties, contrary to the principles of res judicata and issue estoppel.

4. The court a quo further erred and misdirected itself in finding, contrary to law, that, fraud and fraudulent misrepresentation did not constitute a valid cause of action at law; subsequently, the court a quo erred in failing to find that the question of whether fraud and its constituent elements had been proven was an evidentiary issue reserved for trial.

5. The court further grossly erred and misdirected itself in determining the matter regardless of conflicting material averments which could not be resolved on affidavit a fortiori, it could not find as a matter of fact that the claims by the appellants were frivolous and vexatious, absent evidence and its testing in contested action proceedings.

ISSUES

Although the appellants raised five grounds in their notice of appeal, the matter, in my view, stands to be disposed on three issues viz;

1. Whether or not the court a quo erred in failing to dismiss the respondents application for want of prosecution.

2. Whether or not the court a quo reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction thereby violating the principles of res judicata and estoppel.

3. Whether or not the court a quo erred and misdirected itself in determining the matter regardless of the existence of alleged conflicting material averments which could not be resolved on affidavit.

APPLICATION OF THE LAW TO THE FACTS

1. Whether or not the court a quo erred in failing to dismiss the respondents application for want of prosecution

In their first ground of appeal, the appellants take issue with the fact that the court a quo erred and misdirected itself in that having found that the respondents had, by their admission, failed to prosecute their cause within the prescribed period, it ought to have dismissed it for want of prosecution, as no special circumstances existed for it to exercise its discretion in their favour.

The law on applications for dismissal for want of prosecution is settled.

In Guardforce Investments (Private) Limited v Ndlovu & Others SC24-16 the court said:

“The respondent applied to have the appellant's case dismissed for want of prosecution in terms of Rule 236(3) of the High Court Rules, which provides as follows:

'236 Set down of Applications

(3) Where the respondent has filed a notice of opposition and opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set matter down for hearing, the respondent, on notice to the applicant, may either –

(i) Set the matter down for hearing in terms of Rule 223; or

(ii) Make a chamber application to dismiss the matter for want of prosecution; and the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.'

The discretion to dismiss a matter for want of prosecution is a judicial discretion, to be exercised taking the following factors into consideration –

(a) The length of the delay and the explanation thereof;

(b) The prospects of success on the merits;

(c) The balance of convenience and the possible prejudice to the applicant caused by the other party's failure to prosecute its case on time.”

For the appellants to establish that the court a quo misdirected itself in the manner alleged, they have to satisfy this Court that they met all the requirements as set out in Guardforce Investments (Private) Limited v Ndlovu & Others SC24-16.

In casu, the appellants did not satisfy these requirements.

They did not relate at all to the prospects of success they had in the main matter. They did not show that they suffered prejudice due to the respondents non-timeous action.

The grant or refusal of an application for dismissal for want of prosecution is an exercise of discretion. Rule 236(3) of the High Court Rules clearly bestowed discretion on the court a quo on whether to grant or dismiss the application.

In casu, the court a quo exercised its discretion not to dismiss the main matter because the respondents had filed their answering affidavit, heads of argument, and applied for set down of the matter following service of the application for dismissal upon them.

In this light, the court a quo found that despite the delay in filing their answering affidavit and heads of argument, there was no utter disregard of the rules of the court. It further found, that, the explanation given by the respondents, in the circumstances, was reasonable, and, that Rule 236 of the High Court Rules, was not mandatory.

It gave the court a discretion which must be exercised in the interest of justice and finality to litigation.

For this Court to vacate the court a quo's exercise of discretion, certain requirements have to be met.

The laid down test has to be pleaded and met.

It has to be shown that the court a quo, in its exercise of discretion, was motivated by ulterior motives and not the dispensation of justice. It has to be shown, that, the exercise of discretion in the manner the court a quo did was actuated by malice, bias, improper motives, and any other considerations extraneous to the court's conduct prescribed by the law: see Barros & Anor v Chimphonda 1999 (1) ZLR 58 (SC); Barclays Bank of Zimbabwe Limited v Mahachi SC62-04; Robinson v Minister of Lands and Anor 1994 (2) ZLR 171 (S)…,.

In my view, the appellants have not met the test.

They have not shown that the exercise of the court's discretion was motivated by ulterior motives. They have further not proved that there was malice and any other extraneous consideration that influenced the court a quo to exercise its discretion in the manner it did.

There being no proper basis laid out for interfering with the decision of the court a quo, this ground of appeal has no merit and ought to be dismissed.

2. Whether or not the court a quo reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction thereby violating the principles of res judicata and estoppel

This issue deals with grounds two and three. Put differently, the issue is whether the determination of an exception to the summons and declaration, taken in terms of Order 21 Rule 137(1)(b) of the High Court Rules, bars a litigant from seeking a dismissal of the same action for being frivolous and vexatious under Order 11 Rule 75 of the High Court Rules.

The thrust of the appellants argument is that MANGOTA J's finding that they had a substantiated cause of action, based on fraud, precluded TAGU J from making a finding that the claims were frivolous and vexatious.

It was submitted that TAGU J was bound by the principles of res judicata and estoppel to abide by the extant order of MANGOTA J.

The referred question can be determined by ascertaining the law governing exceptions and dismissal of actions and the nature of the cases before the respective judges.

EXCEPTIONS TO PLEADINGS

Rules 137 and 141 of the High Court Rules regulate the procedure to be followed in raising exceptions and the court's powers thereto respectively.

In terms of Rule 137(1)(b) of the High Court Rules, a party can except to the whole pleadings or the specific offending parts. Rule 141(a)(ii) of the High Court Rules empowers the court to make an order striking out or allowing the amendment of the matter contained in a pleading.

In HERBSTEIN & Van WINSEN's The Civil Practice of the High Courts of South Africa, the purpose of an exception procedure was elucidated as follows:

“The taking of an exception is a procedure which is interposed before the delivery of a plea on the merits by a defendant or before the delivery of a replication or joinder of issue by a plaintiff. It is designed to dispose of pleadings which are so vague and embarrassing that an intelligible cause of action or defence cannot be ascertained or to determine such issues between the parties as can be adjudicated upon without the leading of evidence.”…,.

What constitutes a vague and embarrassing pleading was considered in Trope & Ors v The South African Reserve Bank 1992 (3) SA 208…, where the court quoted with approval the lower court's statement that:

“And, if the pleadings lack sufficient clarity to enable the defendant to determine those facts and hence the case he has to meet, the pleadings are vague and embarrassing.”

The test applicable in deciding exceptions based on vagueness and embarrassment arising out of lack of particularity are as summarised by Erasmus Superior Court Practice…, as follows;

“(a) In each case, the court is obliged to first of all consider whether the pleading does lack particularity to an extent amounting to vagueness. Where a statement is vague, it is either meaningless or capable of more than one meaning. To put it simpler, the reader must be unable to distil from the statement a clear single meaning.

(b) If there is vagueness in this sense, the court is then obliged to undertake a quantitative analysis of such embarrassment as the excipient can show is caused to him or her by the vagueness complained of.

(c) In each case, an ad hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. A point may be of the utmost importance to the case, and the omission thereof may give rise to vagueness and embarrassment, but, the same point may, in another case, be only a matter of detail.

(d) The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced.”

See also Sammys Group (Pvt) Ltd v Bourchier Meyburgh N.O. & Ors SC45-15.

From the cited authorities, it can be noted that an exception relates to the formulation of a claim.

A claim must be articulated with sufficient particularity such that it discloses an intelligible cause of action failing which it may be termed vague and embarrassing.

However, the court may set aside the pleadings, and, upon request, grant the plaintiff leave to file an amended pleading within a certain period.

Dismissal at this stage is a drastic remedy, thus, the courts have inclined towards the grant, where an exception is upheld, of leave to the plaintiff to amend the offending pleadings.

THE NATURE OF THE CASE BEFORE MANGOTA J

The court was called upon to determine whether the claims before it were vague and embarrassing to the extent that a party could not easily understand and plead to them without difficulty owing to an unclear cause of action.

In the exception, claims 1, 2, 4, 5 and 6 were alleged to be vague and embarrassing. It is only claim 3 which was said to be not only frivolous and vexatious but vague and embarrassing as it did not disclose a cognizable cause of action.

However, in their heads of argument, the respondents argued that the summons and declaration were expiciable on the basis that they did not disclose any cause of action against them and that they were vague and embarrassing to the extent that the vagueness and embarrassment went to the root of the cause of action.

A reading of the court's judgment shows, that, the court was alive to the case before it which was an exception to the summons and declaration for being vague and embarrassing. To that end, it determined the following question:

“…, whether or not one or more, or all, of the claims do not, as the defendants alleged, disclose a cause of action.”

Thereafter, the court analyzed whether each of the appellant's claims established a cause of action against the respondent.

However, in finding that four of the appellants claims showed clear and cogent causes of action and fell under the delict of fraud, the court remarked that the claims were “neither frivolous nor vexatious.”

A close look into the court's judgment shows that the phrase 'frivolous or vexatious' was employed concerning whether or not the claims subject to the exception disclosed a cause of action and whether or not they were clear and not vague and embarrassing.

It would appear that the phrase was loosely used if regard is had to the issue the court determined and the resultant disposition of the court (an amendment of the vague and embarrassing claims envisaged by Rule 141 of the High Court Rules).

DISMISSAL OF ACTION FOR BEING FRIVOLOUS AND VEXATIOUS

Order 11 Rule 75 of the High Court Rules allows a defendant, who has filed a plea, to seek dismissal of an action that is frivolous and vexatious. It states:

“ORDER 11 DISMISSAL OF ACTION

75. Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit filed in terms of subrule (2) documents which verify his belief that the action is frivolous or vexatious.”

In Rogers v Rogers and Anor 2008 (1) ZLR 330 (S)…, the court, dealing with an appeal against a decision dismissing a claim and granting absolution from the instance in terms of Order 11 Rule 79(2) on the ground that it was frivolous, accepted the following definition of frivolous:

“In S v Cooper & Ors 1977 (3) SA 475 at 476D BOSHOFF J said that the word 'frivolous' in its ordinary and natural meaning connotes an action characterized by lack of seriousness, as in the case of one which is manifestly insufficient.

An action is in a legal sense 'frivolous or vexatious' when it is obviously unsustainable, manifestly groundless, or utterly hopeless and without foundation: see also Western Assurance Co. v Caldwell's Trustee 1918 AD 262 at p271; Corderoy v Union Government 1918 AD 512 at p517; Wood NO v Edwards 1968 (2) RLR 212 at 213A-F; Fisheries Development Corporation v Jorgensen & Anor 1979 (3) SA 1331 at 1339E-F; Martin v Attorney General & Anor 1993 (1) ZLR 153 (S).

It appears to me, that, a plaintiff who commences action in a court of law when he or she has no reasonable grounds to do so has no cause of action. An action without a good cause is baseless and obviously unsustainable.”

Dismissal under Rule 75 of the High Court Rules is therefore a drastic remedy intended to resolve actions that are baseless and unsustainable.

THE NATURE OF THE CASE BEFORE TAGU J

The court per TAGU J, inter alia, determined the respondents application for dismissal of the appellants claims in terms of Rule 75 of the High Court Rules on the basis that they were frivolous and vexatious.

This was after the appellants had amended their claims pursuant to MANGOTA J's order and the respondents had filed their plea.

Notwithstanding the amendment, the respondents argued that the proceedings were not seriously brought with bona fide intent of obtaining relief as the appellants causes of action were founded on falsehoods.

As alluded to, Rule 75 of the High Court Rules allows the course of action taken by the respondents.

Thus, the appellants must have averred material facts in the declaration, proof of which would constitute the essential elements of the alleged causes of action entitling them to the judgment of the court: see Rogers v Rogers and Anor 2008 (1) ZLR 330 (S).

In casu, the appellants claims 1-4 alleged that the respondents made material misrepresentations which caused them financial prejudice; claim 5 related to alleged defamatory statements by the respondents; and claim 6 to mental anguish, emotional embarrassment, and torture due to the respondents exposing their private lives on social media platforms.

The essential elements of the alleged causes of action must have been provided.

Therefore, Rule 75 of the High Court Rules goes beyond the formulation of a claim. It looks into the legal validity of a claim.

Unlike an exception, an inquiry into whether a claim is frivolous and vexatious goes beyond the wording of a claim, it looks into whether the claim has any legal basis or merit. Where it is unsustainable, manifestly groundless, or utterly hopeless and without foundation it is frivolous and may be dismissed.

ANALYSIS

There is no provision in the rules of the High Court that bars a litigant who excepts to a summons and declaration for being vague and embarrassing, under Rule 137 of the High Court Rules, from seeking the dismissal of the matter under Rule 75 of the High Court Rules on the basis that it is frivolous and vexatious.

The Rules relate to different procedural concepts, are invoked at different legal stages, and afford a party distinct legal relief.

The respondents properly invoked each of the Rules, thus, the court per TAGU J cannot be faulted for determining the peculiar application before it which was distinct from the one MANGOTA J dealt with.

Therefore, res judicata does not arise as the issues dealt with by MANGOTA J and TAGU J were different.

THE PROPRIETY OR OTHERWISE OF MANGOTA J's ORDER

I pause momentarily and digress to note, that, there is case law to the effect that it is a misdirection for a court to dismiss an exception taken and simultaneously allow a party to amend their pleadings.

In Chimakure & Anor v Mutambara & Anor SC91-20, the court held that:

“[23] For the sake of convenience, I will begin with the nature of the relief ordered by the court a quo. The court dismissed the exception. It found that the pleadings were not excipiable. Once the court found that the exception was not well taken it could not exercise the discretion of affording the respondents an opportunity to file further particulars. Such indulgence could only follow upon a finding that the exception was well taken. To that extent, it is my view that the court was guilty of a misdirection.”…,.

In Group Five Building Ltd v Government of the Republic of South Africa (Minister of Public Works and Land Affairs) 1993 (2) SA 593A…, the court remarked:

“As far as I am aware, in cases where an exception has successfully been taken to a plaintiff's initial pleading, whether it be a declaration or the further particulars of a combined summons, on the ground that it discloses no cause of action, the invariable practice of our courts has been to order that the pleading be set aside and that the plaintiff be given leave, if so advised, to file an amended pleading within a certain period of time.”…,.

In light of this, this court finds that it was a misdirection for MANGOTA J to dismiss the respondents exception on all claims and grant the appellants leave to amend claims 5 and 6.

In conclusion, TAGU J properly dealt with the claim for dismissal before him.

This is for the reason, that, there is nothing in the Rules to suggest that once the determination of an exception filed under Rule 137 of the High Court Rules has been made, a party cannot move for the dismissal of an action under Rule 75 of the High Court Rules.

The appellants grounds two and three have no merit and ought to be dismissed.

Regarding grounds four and five, the court, at the outset during the hearing, enquired of counsel for the appellants whether these grounds had been abandoned as they had not been motivated in the Heads of Argument.

In response, counsel for the appellants advised, that, none of the grounds were being abandoned.

On being asked to direct the court to where these grounds were motivated, he directed the court to paragraph 15 of the appellants Heads of Argument. This is what paragraph 15 states;

“Even if the court per TAGU J could revisit the question, it still did so wrongly and wrongfully. That there is a valid cause of action is beyond doubt. The law allows refunds and reimbursements for unlawfully paid funds. As a result, there cannot be argument that no cause of action can arise.”

The argument advanced in this paragraph completely misses the respondents position.

It is not that there is no cause of action. It is that the appellants pleaded falsehoods and that they could never succeed at trial on the facts as pleaded. Their action was therefore frivolous and vexatious.

The paragraph also misconstrues the finding of the court a quo.

Nowhere in the judgment a quo is it stated that a misrepresentation did not constitute a valid cause of action.

The court a quo examined each claim separately and gave reasons as to why it found each claim to be frivolous and vexatious. The crisp finding of the court a quo, in respect of each claim, was that on the facts as pleaded by the appellants, no competent cause could be sustained.

By way of illustration, in Claim One, the appellants alleged that the respondents alleged that they stopped paying the loan that they had obtained from ZB Bank on the basis of a prophecy made by the respondents to the effect that it was “a season of miraculous cancellation of debts.”

It could not, on the facts as pleaded by the appellants, be established through a deeds search at the Registrar of Deeds office that the appellants owed ZB Bank Limited USD500,000 and that the property they allegedly lost was bonded in favour of ZB Bank for that amount.

It could not be supported, factually, through a search carried out in the Civil Registry of the High Court that ZB Bank sued the appellants for USD500,000 between 2012 and 2017 as alleged, and that the property in question was attached or sold in execution as alleged or at all at the instance of ZB Bank Limited.

The reality on the ground, which the appellants never controverted, was that the property was at all material times owned by Carmeco Investments (Private) Limited (Carmeco) a separate persona from the appellants in terms of Deed of Transfer No.10763/2002 dated 24 September 2002.

In that regard, the law relating to companies applies with full force and effect.

The appellants cannot claim to have been prejudiced in respect of what they did not own.

In any event, as early as 29 February 2012 Carmeco Investments (Private) Limited had sold the property for USD800,000 to Nemajo Family Trust as represented by Steward Nyamushaya. The purchase price thereof was paid in full through the appellants agents, McDowells International (Private) Limited.

At no time did it appear from the deeds search that Carmeco Investments (Private) Limited, which owned the property, mortgaged number 14 Edinburgh Road, Marlborough to ZB Bank Limited for the sum of USD500,000 during the period 2012 to 2017.

The above illustration clearly demonstrates that the appellants pleaded falsehoods.

In their notice of opposition to the application, the appellants did not controvert these facts.

They contended, that, they did not have to reply to the evidence submitted by the respondents as it was a matter of evidence to be related to at trial.

They overlooked the fact, that, in terms of Rule 75(2) and (3) of the High Court Rules a party making an application in terms of subrule (1) is required to do two things:

(i) Firstly, he or she shall file an affidavit in which he sets out his belief that the action is frivolous and vexatious and the grounds for his belief.

(ii) Secondly, he or she may attach documents which verify his or her belief that the matter is frivolous and vexatious.

Once that information has been placed before the court, it should be incumbent upon the other party to controvert it.

In casu, the appellants did not do so. Rather, they directed their energy to a vitriolic attack on the respondents instead of addressing the requirements of Rule 75 of the High Court Rules.

Having misconstrued the court a quo's finding, grounds of appeal four and five must fail.

Everything considered, I find no fault with the reasoning of the court a quo. No proper basis has been placed before this court to interfere with the court a quo's exercise of its discretion.

The respondents prayed for costs on a punitive scale, mainly on the basis that the lis a quo was an un-mitigated attack upon their good names. It was shown to be false. The respondents pockets have not been spared in the bid to protect themselves from a sustained assault upon their good names.

I see no reason why costs on a legal practitioner-client scale should not be granted.

Accordingly, I make the following order;

1. The appeal be and is hereby dismissed.

2. The appellants to pay the respondents costs on a legal practitioner client scale, jointly and severally, the one paying the other to be absolved.

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

ISSUES FOR DETERMINATION

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17....,.

SHOULD MAIN MATTER BE DISMISSED IN TERMS OF ORDER 11 RULE 75(1) OF THE HIGH COURT RULES

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills....,.

AD MERITS

The Makandiwas filed this application in terms of Rule 75(1) of the High Court Rules 1971 for the summary dismissal of frivolous and vexatious action proceedings instituted by the Mashangwas in an action pending before this court under case number HC7214/17.

The respondents made six claims.

Their cause of action in claims 1-4 is said to fall into the delict of fraud. The fifth claim is said to relate to the delict of injurious falsehoods. The sixth claim has been held to fall under the delict of injuria.

A common thread runs through these claims.

They plead that they were members of the third applicant (United Family International Church), a Christian Church founded by the first and second applicants (Emmanuel Makandiwa and Ruth Makandiwa). They further allege that they either received prophesies or representations in church or that certain injurious publications were made of and concerning them or their business. Hence, they claimed various sums all aggregating to a staggering six and a half million United States Dollars.

The applicants pleaded to each of the six claims. They denied the allegations.

Their pleas were filed in contemplation of the present application for dismissal.

The applicants placed before the court a detailed verifying affidavit that traversed and attached incontrovertible evidence which they said exposed the falsity of the facts pleaded by the plaintiffs in their declaration.

The applicants, thereafter, filed the present application for the dismissal of the suit as frivolous and vexatious.

The application is strongly opposed by the respondents.

THE LAW

Rule 75 of the High Court Rules allows a defendant, who has pleaded, to apply for the summary dismissal of the action on the grounds that it is vexatious.

The defendants must, on notice of motion, positively swear to the facts and verify their belief that the action is vexatious and deserving of summary dismissal.

The purpose of this procedure is the same as that of the procedure for summary judgment or provisional sentence.

The court, if satisfied, has the inherent jurisdiction to disallow and dismiss proceedings that are frivolous or vexatious: see Ushewokunze Housing Co-oporative Society Limited v Crest Breeders International (Private) Limited HH529-16; Rogers v Rogers & Another 2008 (1) ZLR 330…,.; and S v Coopers & Others 1977 (3) SA 475…,.

The test to be applied can be explained in no better words than those of MAKARAU JP…, in Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Anor HH64-10 as follows:

“The test to be applied in summary judgment applications is clear and settled. The onus resting on a defendant resisting summary judgment has been described as amongst the lightest that the rules of procedure cast on the litigants. He does not have to prove his defence. He must merely allege facts, which, if he can succeed in establishing them at the trial, would entitle him to succeed in his defence.

The defence so set up must, however, be plausible and bona fide.

Obviously implied in this test, but oft overlooked by legal practitioners, is that the defendant must raise a defence. The facts alleged must lead to and establish a defence that meets the claim squarely. If the facts that he alleges, fascinating as they may be and which he may very well be able to prove at the trial of the matter, do not amount to a defence at law, the defendant would not have discharged the onus on him and summary judgement must be granted.

To defend a claim arising out of a contract of sale, the purchaser must attack either the existence of the agreement itself or the fact that the goods sold were not delivered to him. If other defences are raised, they must be raised explicitly. It is not the function of the court to put words into the defendant's mouth and thereby establish a possible defence on his behalf when the defendant fails to do so in his opposing affidavit.”

In the present case, the respondents ultimately denied any liability to the plaintiffs.

This application, therefore, turns on the law of summary dismissal of cases on the basis that they are frivolous and vexatious.

Order 11 Rule 75(1) of the High Court Rules, which provides for this procedure, states that the defendant may make an application for the summary dismissal of the case, after filing of his plea, on the grounds that it is frivolous and vexatious.

My sole duty is to determine whether or not the claims are frivolous and vexatious.

CLAIM ONE

In claim one, the Mashangwas alleged that in the year 2012, and in church, the Makandiwas fraudulently and misrepresented that anyone with a Bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.

The essence of this claim is that the applicants, having been informed, privately, that the respondents were indebted to ZB Bank Limited in the sum of $USD500,000 made representations well knowing same to be false.

The respondents were induced to believe the applicants more than anyone else in the church and defaulted on the payment of their loan resulting in their house being executed.

This misrepresentation has been denied on the basis, that, the said property had been sold by the respondents as early as February 2012 for USD800,000 to the Nemanji Family Trust represented by one Steward Nyamushaya. Hence, the claim was based on falsehoods meant to annoy, vex, and harass the applicants and without any bona fide intention of obtaining relief.

Even if it is true that such a representation was made in church, it is inconsistent with common sense and reason that God would unconditionally cancel all the debts of every nature and description and that congregates should immediately stop paying any loans that they had even before the same had been cancelled; that congregates should accordingly not engage their creditors; and that congregates should ignore demands, court processes, judgments, notices of attachment and advertisements of sales in execution and must not take any steps to safeguard their positions.

The respondents, from the papers, are business people of undoubted and unparalleled acumen. They knew very well that the debts, if any, they had incurred, they had done so in terms of positive law and not ecclesiastical law.

Even in the Holy Bible, King James Version, in Genesis 3 v 19, God advised Adam in the following words:

“In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it was thou taken…,.”

“By the sweat of your face you shall eat bread, till you return to the ground, for out of it you were taken; for you are dust, and to dust you shall return.”: see The Gideons International version…,.

In the vernacular language: 'uchadya cheziya kusvikira murufu': this is loosely translated to mean there is nothing for free and every man shall work hard to achieve what he wanted until death, and that God would give them power and wisdom to achieve their goals and not just expect miracles to happen on their own.

If Makandiwa talked of season of miraculous cancellations of debts, he did not literally mean those with debts should go home and just sit waiting for debts to be miraculously wiped without them doing something about them.

The law on misrepresentations in delict is settled: see Murray v McLean N.O. 1970 (1) SA 133 (R).

I therefore find the first claim to be frivolous and vexatious and must be summarily dismissed with the contempt it deserves in terms of Order 11 Rule 75(1) of the High Court Rules.

CLAIM TWO

The allegations in Claim Two are that the applicants made representations, in church, that a certain Tichaona Mawere was a great lawyer and that he would not lose any case.

This representation was denied by the applicants.

The applicants alleged, that, the prophecy given concerned the Mawere's exclusively to their family problems. It particularly related to their legal skills at home in resolving their family disputes. The applicant said so while counselling the Maweres not to do so. Never was anyone told to engage Tichaona Mawere who was a great lawyer. The applicants alleged they could not have said so given the fact that the respondents had engaged one Tichaona Govere of Govere Law Chambers to act for them on 20 March 2013, on a contingent basis, to prosecute the case against McDowells in judgment number HH288-13 which was argued before TAKUVA J on 23 July 2013, whose judgment was delivered on 2 September 2013.

If at all something to that effect was said, the respondents are not saying they were directly told to engage Tichaona Mawere.

The claim was contrived and perjured.

In my view, if indeed the applicants said Tichaona Mawere was a great lawyer, or words to that effect, they did not specifically tell the Mashangwas to hire him. They just misconstrued the prophecy or sermon to their own prejudice.

It is equally frivolous and vexatious that no relief could be obtained from it. The claim deserves to be summarily dismissed.

CLAIM THREE

Claim Three is based on the fact, that, from the year 2014 to 2016, the Mashangwas were called on stage, in church, and were announced as a successful example in their Ministry, United Family International Church (UFIC), and, as a result, they made direct contributions to the church amounting to $1,100,000.

The gravamen of this claim is that the respondents lost the sum of USD$1,100,000 as a result of the representation made by the applicants: in short, they are saying if the applicants had not paraded them in church as a successful example in the Ministry they would not have made contributions to the church.

Contributions are generally known as tithes and offerings.

Tithes and offerings are biblical concepts recorded as early as the Book of Genesis. Tithes and offerings are acts of worship that edifies the relationship between the person who gives the offering and God. They are predicated on the believer's faith and are not enforced. They are free will offerings given in all the Christian Churches. Tithes and offerings constitute 10% of the giver or offeror's income, though, in practice, not all believers give the exact 10%. Only in certain churches is the 10% enforced by forcing the followers to declare their incomes from which the 10% is calculated.

If the respondents allegation is true, which may be so given that they are business people, then, their income during the period in question exceeded USD$11,000,000, and, if they believed the representation made by the applicants, that they are a successful example in the Ministry, they willingly parted with an amount of USD1,100,000.

However, what makes the claim frivolous and vexatious, in my view, is the fact that if ever the respondents parted with such kind of money inside the third applicant, United Family International Church (UFIC), those were free will offerings not recoverable from anyone - unless the respondents wish to try the impossible and get that from God, the receiver of the offerings.

How they hope to get a court to interpret scripture and say one reading is preferable to another in the Holy Bible remains a mystery.

In casu, the respondents admitted, in their pleadings, that the tithes they gave cannot be returned.

Having made that admission in pleadings, the admission thereof had fatal consequences to their case. The admissions are conclusive proof of the admitted fact and the respondents are, at law, precluded from controverting it.

This is our law.

See DD Transport (Pvt) Ltd v Abbort 1988 (2) ZLR 92 (SC); Moresby–White v Moresby White 1972 (3) SA 222 (RA).

This claim, like the others above, is frivolous and vexatious and is summarily dismissed.

CLAIM FOUR

Claim Four, with the greatest of respect, does not make sense; its vague and embarrassing.

The gravamen of the claim is that the respondents were paraded on stage, in church, and shown to the other congregates as the chosen people by God to have succeeded in their business. As a result, they then marketed the first applicant's prophecies (Emmanuel Makandiwa) for the advancement of the applicants interests and prophesies, when, in truth and fact, this was sheer misrepresentation and they lost USD2,000,000.

What the respondents are saying is that when they were paraded in church as the chosen people by God, in actual fact, they were not chosen people by God. That, when they were said to be successful in their own business (remember they were in fact business people) they were really not successful people. That, because of the praise made by the applicants, they went on their own way to market the applicants prophesies using their own funds without being ordered to do so by the applicants. They did so because they genuinely believed that they were the chosen people by God. They, in my view, decided to show off and lost USD2,000,000.

At law, they did not plead any cognizable or known cause of action.

This is bad in law, and is frivolous and vexatious to then claim the sum of USD2,000,000 from the applicants. If at all, this may fall under volenti non fit injuria (he who voluntarily exercises his will suffers no injury).

The claim is therefore frivolous and vexatious and must be summarily dismissed.

CLAIM FIVE AS AMENDED

The crux of this claim is that the applicants allegedly published defamatory material against the respondents company that sells perfumes to the extent that the company was forced to close.

The defamation, if at all it was made, it was made against the company and not the respondents.

However, the claim was denied by the applicants.

The law is trite and settled, that, a company is, at law, a separate persona that can sue for the wrongs committed against it or be sued for the wrongs it commits. This is principle and cannot be deviated from.

The principle is that the award made thereto is the company's assets and benefits and not the shareholders or directors.

The respondents are directors and/or shareholders of the company in question.

In Zimbabwe Electricity Supply Authority v Modus Publications (Pvt) Ltd 1996 (2) ZLR 256 (HC) the court said:

“Dealing with the first ground, it is settled law that a trading corporation, being in law a person distinct from its members, and having therefore a reputation of its own to maintain, can sue for a defamatory statement which affects it in its trade, business, or property whether or not actual damage is proved: see McKERRON The Law of Delict 7ed at p181; Boka Enterprises (Pvt) Ltd v Manatse & Anor 1989 (2) ZLR 117 (H).”

In this claim, the fact that the respondents are the alter ego cannot take their matter any further.

It is therefore frivolous and vexatious, as well as abusive, for the people that run the company to sue for wrongs allegedly committed against the company in their names, without even joining the company to the proceedings, other than to harass and annoy the applicants.

The claim is equally and summarily dismissed in terms of Rule 75(1) of the Rules of this Honourable Court.

CLAIM SIX AS AMENDED

Lastly, the crux of this claim is an allegation by the respondents to the effect that the applicants violated their privacy when they published information communicated to them in private on their Facebook page “The Truth About Makandiwa.”

The respondents claim a staggering USD500,000.

What has not been controverted by the respondents is the fact, that, the Facebook page in question does not belong to the applicants nor does it represent the applicants views.

In fact, the Facebook page contains some information that denigrates the first applicant (Emmanuel Makandiwa).

This fact, from the papers, is deemed admitted by the respondents: see Rule 104 of the High Court Rules 1971.

Further, the date, nature, and extent of the material given to the first applicant in private and confidence has not been pleaded but is said to be certain information of a private nature, which the respondents said they would say at the trial, rendered such pleadings defective, and, under any circumstances did not find any cause of action.

This is in variance with the law as stated in the case of International Tobacco Co. of SA Ltd v Wollheim 1953 (2) SA 603 (A)…, where the court said:

“It appears to be clear that the plaintiff, in his declaration, must set out the words alleged to have been used and may not content himself with giving their effect. It is for the court to decide what their effect is.”

The sixth claim is, on the pleadings, so patently groundless that the respondents cannot ever hope to succeed in obtaining relief on hence should be summarily dismissed as being frivolous and vexatious.

In the result, I make the following orders:

IT IS ORDERED THAT:

1....,.

2. The Court Application filed by the Applicants in HC1774/18 be and is hereby granted.

3. Each of the respondents six (6) claims as the plaintiffs against the respondents as defendants in case number HC7214/17 is declared frivolous and vexatious.

4. Each of the six (6) claims aforesaid be and is hereby summarily dismissed with costs at the legal practitioner-client scale.

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Constitutional Rights re: Access to Courts, Legal Literacy, Judicial Independence, Impartiality, Dignity and Competence

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

HH330-16 : CITY OF HARARE vs TENDAI MASAMBA
Ruled By: MAFUSIRE J

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD
Ruled By: MANGOTA J

HH969-15 : IAN MASAMBA and IGNATIUS MASAMBA vs DIRECTOR – ZIMSEC
Ruled By: MUNANGATI-MANONGWA J

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS
Ruled By: MAFUSIRE J

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

Categories

Law Portal Zimbabwe

Constitutional Rights re: Access to Courts, Legal Literacy, Judicial Independence, Impartiality, Dignity and Competence

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC07-15 : DANIS KONSON vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE Ruled By: MAFUSIRE J

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO Ruled By: MWAYERA J and MUZENDA J

HHH531-17 : STATE vs JOHANNES TOMANA Ruled By: CHITAPI J

HH699-16 : IGNATIUS MASAMBA vs ZETDC Ruled By: MAKONI J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC Ruled By: MAKONI J

HH330-16 : CITY OF HARARE vs TENDAI MASAMBA Ruled By: MAFUSIRE J

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD Ruled By: MANGOTA J

HH969-15 : IAN MASAMBA and IGNATIUS MASAMBA vs DIRECTOR – ZIMSEC Ruled By: MUNANGATI-MANONGWA J

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS Ruled By: MAFUSIRE J

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT Ruled By: MATHONSI JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL Ruled By: CHATUKUTA JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O. Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

Appealed SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR Ruled By: TAGU J

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Law Portal
Zimbabwe

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

HMT58-19 : EVANS MULAUZI vs RUSAPE TOWN COUNCIL and SOLOMON GABAZA and TARISAI MANZONZO
Ruled By: MWAYERA J and MUZENDA J

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

HH330-16 : CITY OF HARARE vs TENDAI MASAMBA
Ruled By: MAFUSIRE J

HH793-16 : MABWE MINERALS (PVT) LTD and TAPIWA GURUPIRA and TAG MINERALS ZIMBABWE (PVT) LTD and JOHN GROVES vs PETER VALENTINE and BASE MINERAL ZIMBABWE (PVT) LTD
Ruled By: MANGOTA J

HH969-15 : IAN MASAMBA and IGNATIUS MASAMBA vs DIRECTOR – ZIMSEC
Ruled By: MUNANGATI-MANONGWA J

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS
Ruled By: MAFUSIRE J

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J